Demande directe (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 94) sur les clauses de travail (contrats publics), 1949 - Polynésie française

Article 2 of the Convention. Inclusion of labour clauses in public contracts. In its previous comments, the Committee asked the Government to keep the Office informed of any developments relating to the revision of the Public Procurement Code, especially concerning the revision of section 42(3) of the Code. The Committee notes the entry into force on 1 January 2018 of the new legal corpus which marks the completion of the reform of the regulations relating to public procurement in French Polynesia, in particular Order No. 1455 CM of 24 August 2017 and Act No. 2017-14 of 13 July 2017 issuing the Public Procurement Code of French Polynesia. It also notes the information provided by the Government concerning the modifications made in the legal provisions or practice applicable to public procurement. The Government indicates in its report that the new Public Procurement Code sets out the rules relating to the drawing up, award and execution of public contracts for French Polynesia and for the communes and their subdivisions (public establishments and groupings). As regards the revision of section 42(3) of the Public Procurement Code, the Committee notes the Government’s indication that this section has been repealed at the national level. However, regarding the effective application of the fundamental requirements of the Convention, consisting of the inclusion of labour clauses of the type stipulated in Article 2 of the Convention, the Government indicates that the provisions of the new Public Procurement Code of French Polynesia oblige public purchasers to ensure that co-contractors of the administration respect their obligations with regard to the labour regulations prior to the award of the contract and during its execution. The Government also refers to Annexes 1 and 2 of the new Code which define the general terms and conditions of contract (CCAG) establishing administrative provisions applicable to public contracts. The Committee notes that these cannot deviate from mandatory provisions such as the labour legislation applicable to any public or private contract (section 6 of Order No. 1455 CM of 24 August 2017 – Public Procurement Code of French Polynesia). However, the Committee notes that the new legislation governing public procurement does not contain any provision requiring the inclusion of labour clauses in public contracts, as provided for by Article 2(1) and (2) of the Convention. In this regard, the Committee draws the Government’s attention to the 2008 General Survey on labour clauses in public contracts and to the 2008 practical guide relating to the present Convention and the Labour Clauses (Public Contracts) Recommendation, 1949 (No. 84), which put forward guidance and examples to follow to ensure that the application of the national legislation is in conformity with the provisions of the Convention. Recalling that the Convention does not necessarily require the adoption of new legislation but may be applied through administrative instructions or circulars, the Committee hopes that the Government will take the opportunity provided by the transposition of the new Public Procurement Code of French Polynesia to bring its national legislation fully into line with the provisions of the Convention, particularly regarding determination of the terms of the labour clauses to be included in the public contracts to which the Convention applies, after consultation of the employers’ and workers’ organizations concerned (Article 2(3)) and the publication of a notice regarding the specifications or any other measure to ensure that persons tendering for contracts are aware of the terms of the clauses (Article 2(4)). The Committee also requests the Government to provide detailed, up-to-date information on any measures taken or contemplated to give full effect to the essential requirements of the Convention, namely the inclusion of labour clauses of the type required by Article 2 of the Convention in public contracts, and to keep the Office informed of all progress made in this regard. The Committee also reminds the Government that, if it wishes, it may avail itself of ILO technical assistance in this regard.