Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 94) sur les clauses de travail (contrats publics), 1949 - Norvège (Ratification: 1996)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the International Organisation of Employers (IOE) and the Confederation of Norwegian Enterprise (NHO), jointly submitted in October 2020. It further notes the additional observations of the Confederation of Norwegian Enterprise (NHO) and the observations of the Norwegian Confederation of Trade Unions (LO), both communicated together with the Government's report. The Government is requested to provide its comments in this respect.

Article 2 of the Convention. Insertion of labour clauses in public contracts. In its previous comments, the Committee requested the Government to provide updated detailed information on the manner in which Regulation No. 112/2008, as amended, is applied in practice, and to communicate a summary of the evaluation concerning the Regulation. The Government refers once again to the evaluation of the Regulation carried out by the Office of the Auditor General of Norway and that the results of the evaluation were published in an official report in 2016. The 2016 report found that public authorities do not always have adequate procedures and systems in place to prevent social dumping in their procurement processes. In this context, the 2016 report noted a clear correlation between the development of such procedures and systems and compliance with the Regulation. The Government reiterates that, while in some 86 per cent of procurements, public authorities include information indicating that the contract would contain a labour clause, compliance is generally higher among central authorities in comparison to smaller municipalities. The Government indicates that, according to the 2016 report, lack of understanding of the requirements of the Regulation seems to be an important reason for inadequate compliance, and there is potential for improving the information and guidance on how to apply the Regulation. The Committee notes that, following the advice of the Office of the Auditor General, the Government has taken a number of measures to ensure a work-life without social dumping in public procurement. The Committee further notes that, in September 2018, the Government developed and published a new online guide on the Regulation on Pay and Working Conditions in Public Contracts. The Government reports that the Ministry of Labour and Social Affairs has requested the Agency for Public Management and eGovernment (Difi) to take measures to develop the online guide further, as well as to familiarise the public authorities with its contents. The Committee notes with interest that a similar guide has also been developed with respect to the public procurement legislation with the objective of limiting the number of subcontractors in the contract chain in sectors that are particularly vulnerable to social dumping. In their observations, the NHO and the IOE express their support of the Ministry of Labour and Social Affairs' initiative in tasking Difi with developing the online guide further to assist the public authorities in giving effect to the Convention. Nonetheless, they point out that any measures taken to disseminate information about the Regulation must ensure transparency and distinguish between best practices and applicable mandatory law. The Committee notes the Government's indication that it plans to evaluate compliance with the Regulation once the guide on the Regulation on Pay and Working Conditions in Public Contracts has been accessible online for some time. In addition, in its allocation letters to all governmental agencies for 2018 and 2019, the Government has urged that public procurements be carried out in such a way as to combat work-related crime. With respect to the LO observation on including pension schemes as a part of the employees’ wage and working conditions, the NHO and the IOE concur with the Government's view that the Convention does not imply any obligations concerning occupational pension schemes. The Government indicates that it has appointed a committee of experts to examine several issues related to public procurement and public financing of welfare services. This committee will also look into questions related to pay and working conditions and pension schemes for employees employed by providers of welfare services. The Government reports that the Labour Inspection Authority's resources have been increased by 110 million Norwegian kroner from 2013 to 2019, including approximately 34 million kroner for combating work-related crime. The Government adds that several public authorities have developed their own models for public procurement that aim to promote decent work and fight work-related crime, social dumping and the exploitation of workers across supply chains. These models implement standard contract terms, including terms relating to labour rights that are stricter than those currently required by procurement regulations. The Committee notes that the Government has initiated the making of a guide for public authorities who want to use such stricter standards in their public contracts. In its observations, the Norwegian Confederation of Trade Unions (LO) indicates that the European Surveillance Authority (ESA) has sent a letter of formal notice to the Government concerning restrictions on subcontracting in the field of public procurement in Norway, in which it expresses the view that the relevant Norwegian public procurement law does not comply with EEA-law. ESA has also requested information concerning the municipal public procurement policies (models) used to combat work-related crime. The LO further observes that the Norwegian Government has rejected a proposal from the Labour Party to change the national public procurement law based on the new ruling of the EC-court (Case C 395/18- Tim SpA). The ruling stated that the requirement to ensure that providers comply with environmental, social and labour provisions in public procurement is a cardinal value equal to the other basic principles such as transparency, competition, predictability and non-discrimination. The Committee notes that the LO will continue to work to include the new ruling in national law. It also notes the observations of the IOE and the NHO, indicating that any measures taken to give effect to Convention No. 94 must be subject to an assessment of relevant EEA/EU Law on free movement and rules concerning public procurement. The Committee requests that the Government continue to provide information on the manner in which the Convention is applied, including, for instance, labour inspection reports, indicating the number of inspections of public administration contracts carried out, the number and type of violations detected and the sanctions imposed, if any. It further requests the Government to keep the Office informed of any developments in the relevant national legal and regulatory framework as well as with respect to evaluations of the Regulation on Pay and Working Conditions in Public Contracts.