This matter is currently being discussed at EU level as part of the proposed amendments to the Procurement Directives and my Department is represented on the working group engaged in the process of considering the proposals. In the absence of an EU wide system to ensure compliance with employment and equality legislation, we will consider whether appropriate measures can be taken in the procurement process. Nonetheless we have already taken steps through the performance of the Public Works Contracts to ensure that a contractor must comply with relevant legislation.
Sub-clause 5.3.3(8) of the Pay and Conditions of Employment in the Public Works Contract requires the main contractor and all subcontractors employed by main contractors, to observe, in relation to the employment of workers on the site, compliance with employment law generally, including, for example, the relevant Registered Employment Agreements, existing statutory requirements such as the national minimum wage, legally binding determinations under the Industrial Relations Acts, health and safety legislation and equality legislation relating to employment.
The Public Works Contracts also requires a main contractor to provide a certificate of compliance (titled ‘Rates of Pay and Conditions of Employment Certificate') with each interim statement submitted (normally on a monthly basis). The certification includes observance of the requirements under Sub-clause 5.3.3(8). Failure to provide this compliance certificate will result in payment not being made by the contracting authority. If a main contractor provides a certificate of compliance and it is subsequently found to be untrue or partly untrue the contracting authority has the right to deduct the money relating to the work or part of the work covered by the certificate from any sums due to the main contractor. This money can be withheld until the pay and conditions of employment issue is made right. The ultimate sanction if a main contractor continues to be non-compliant is for the main contract to be terminated.
The management of a public works contract is a matter between a contracting authority and a main contractor. It is the responsibility of each contracting authority to ensure that contractors comply with all the requirements of the contract. If the Deputy is aware of any non-compliance he should contact the relevant contracting authority directly.
It is possible that as part of the public procurement tendering process a company could be awarded a public works contract where a contracting authority may not be aware of any outstanding judgements by the Labour Court made against a tenderer because there is not a mechanism equivalent to the tax clearance certificate system in place for compliance with employment law.
