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

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Ghana (Ratification: 1961)

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

Repetition

The Committee recalls that it has been commenting on the application of the Convention since its ratification by Ghana and regrets that the Government is still unable to indicate any real progress in bringing its national legislation into conformity with the requirements of the Convention. The Government makes renewed reference to section 118 of the Labour Act 2003 even though the Committee has already noted that this provision is not strictly relevant to the subject matter of the Convention and does not give effect to Article 2 of the Convention which explicitly requires the insertion of labour clauses in those public procurement contracts meeting the conditions specified in Article 1 of the Convention. In fact, the general principles set out in the Labour Act regarding minimum wage fixing, maximum working hours or occupational safety and health cannot automatically guarantee to the workers concerned labour conditions which are not less favourable than whichever is the most favourable of the three alternatives provided for in the Convention, i.e. collective negotiation, arbitration or legislation.

As the Committee has stated on a number of occasions, the legislation to which the Government refers in most cases lays down minimum standards, for instance as regards wage levels, and does not necessarily reflect the actual working conditions of workers. Thus, if the legislation lays down a minimum wage but workers in a particular profession are actually receiving higher wages, the Convention would require that any workers engaged in the execution of a public contract be entitled to receive the wage that is generally paid rather than the minimum wage prescribed in the legislation. In other terms, the application of the general labour legislation is not enough in itself to ensure the application of the Convention, inasmuch as the minimum standards fixed by law are often improved upon by means of collective agreement or otherwise.

Moreover, the Government refers once more to the fact that individuals or firms are required to obtain labour clearance certificates before they are allowed to tender for public contracts. In this regard, the Committee is bound to recall that the essential purpose of the insertion of labour clauses in public contracts goes beyond the aims of simple certification, as its purpose is to eliminate the negative effects of competitive bidding on the workers’ labour conditions. The Convention seeks to ensure the contractor’s commitment to apply high standards of social responsibility in the execution of a public contract which is in the process of being awarded and therefore a mere indication that the contractor concerned has no record of labour law violation in previously completed works is not sufficient to meet its requirements. As regards the adoption of the Public Procurement Act 2003, the Committee asks the Government to specify the provisions referring to the labour clearance certificate and also forward a copy of the standard tender document used for this purpose.

In the interest of maintaining a constructive dialogue, the Committee therefore requests the Government to indicate in its next report any concrete measures taken or contemplated to implement the Convention in law and practice, and recalls in this respect that the inclusion of labour clauses in all the public contracts covered by the Convention does not necessarily call for legislative enactment but may also be effected by means of administrative instructions or circulars.

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