1. International Labour Standards

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1 Private Employment Agencies Convention 1997 (No. 181) 6 th ASEAN Forum on Migrant Labour November 2013 Bandar Seri Begawan, Brunei Darussalam Nilim Baruah Senior Migration Specialist ILO Regional Office for Asia and the Pacific 1. International Labour Standards International Labour Standards (set by ILO) take the form of: Conventions: legally binding international treaties that may be ratified by member States Recommendations: non-binding but authoritative guidelines that do not have to be ratified and become effective upon adoption at the ILC ILS are designed to promote Decent Work for workers of all nationalities. Conventions set out minimum standards. Recommendations usually accompany a Convention and provide more specific guidance for national law. 1

2 1. International Labour Standards The role of ILS is to provide authoritative guidance on work-related matters, so that work can fulfill its function as a lever lifting people out of poverty while providing space to economies to make adjustments to raise productivity and income levels. 82 Conventions and 82 Recommendations are considered up-to-date ILS are drawn up by reps. of governments, employers and workers of ILO MS (181) and are adopted at the annual international labour conference. ILS provide a reference for the development of national legislation and this way have a real impact on the lives of million of workers, including MWs. Supervisory mechanism: Reporting system and complaints procedures 2. Private Employment Agencies Convention, 1997 (No. 181) C 181 was adopted at the 85 th ILC session, Geneva (June 1997). 27 countries have ratified the Convention including: Country Date of Ratification Ratification Status Albania 30 Jun 1999 In force Algeria 06 Jun 2006 In force Belgium 28 Sep 2004 In force Bosnia and Herzegovina 18 Jan 2010 In force Bulgaria 24 Mar 2005 In force Czech Republic 09 Oct 2000 In force Ethiopia 24 Mar 1999 In force Fiji 21 Jan 2013 Not in force Finland 25 May 1999 In force Georgia 27 Aug 2002 In force Hungary 19 Sep 2003 In force Israel 04 Oct 2012 In force Italy 01 Feb 2000 In force Japan 28 Jul 1999 In force 2

3 2. Private Employment Agencies Convention, 1997 (No. 181) Country Date of Ratification Ratification Status Lithuania 19 Mar 2004 In force Moldova, Republic of 19 Dec 2001 In force Morocco 10 May 1999 In force Netherlands 15 Sep 1999 In force Panama 10 Aug 1999 In force Poland 15 Sep 2008 In force Portugal 25 Mar 2002 In force Serbia 15 Mar 2013 Not in force Slovakia 22 Feb 2010 In force Spain 15 Jun 1999 In force Suriname 12 Apr 2006 In force The former Yugoslav 03 Oct 2012 In force Republic of Macedonia Uruguay 14 Jun 2004 In force 2. Private Employment Agencies Convention, 1997 (No. 181) Rationale Conclusion among MS that institutional framework governing employment mediation needed to be overhauled in the wake of temporary work agencies and different approaches towards fee charging International labour migration and emergence of new types of agencies. Budgetary constraints faced by public employment agencies and proliferation of fee charging agencies and complaints Purpose establish general principles and provide guidance to protect labour markets against poor and unethical practices; workers interests in triangular employment relations; migrant workers create environment for the improved functioning of all employment agencies and to describe them National governments to determine how above should be met 3

4 3. C 181 Preamble Recognizing the importance of flexibility in the functioning of labour markets Recognizing the role that PrEAs play in a well functioning labour market The need to protect workers, including migrant workers, against abuses The need to guarantee the right to freedom of association and to promote collective bargaining and social dialogue Providing global minimum standards to guide national action 4. Definition of a PrEA Article 1: Any natural or legal person, independent of public authorities which provides labour market services: Matching offers of and applications for employment Employing workers with a view to making them available to a third party Other services related to jobseeking (such as provision of information) 4

5 5. C 181 Key measures and approaches Article 2: allows MS to prohibit the operation of PrEA in respect of certain categories of workers e.g. Algeria Article 3: Operation of PrEA subject to licensing or certification or national law and practice. ILO Committee of Experts has noted that a national licensing and certification requirement is a means for ensuring proper performance and increases transparency. Netherlands: license requirement abolished and self regulation in its place (private system of registration supervised by sector). 5. C 181 Key measures and approaches Article 7: general prohibition on the charging of fees and other costs directly or indirectly in whole or in part to workers. Exemptions: may be authorized when they are in interests of the workers concerned; in respect of certain categories of workers; as well as specified types of services. Exemptions are subject to: Consultation with social partners Transparency (legal framework and disclosure) Reporting to ILO Japan has ratified C 181 and reported exemptions 5

6 5. C 181 Key measures and approaches Article 10: adequate machinery and procedures for investigating complaints and abuses Articles 4, 5: freedom of association and collective bargaining; non discrimination. Article 11: contains provisions on the protection of workers in accordance with national law Article 12: is on the allocation of responsibilities between the PrEA and user enterprise as per national law and practice on worker protection. Article 13: cooperation between public and private employment agencies including sharing of information and publication (for purposes of policy & statistics) 6. Recommendations and Codes of Practice R188 Private Employment Agencies Recommendation, 1997 (No. 188) Measures to eliminate unethical practices Workers should have a written contract where appropriate Not replace workers on strike Combat unfair advertising practices and misleading advertisements CIETT Charter of Private Employment Agencies No costs or fees to workers for job finding services Not replace workers on strike Non discrimination in working conditions 6

7 7. Private Recruitment Agencies in Asia Private recruitment agencies play a vital role in international labour migration in Asia when matching job seekers and employers. They account for a majority of workers placed abroad from the Philippines, Indonesia, India, Pakistan, Sri Lanka, Bangladesh and Thailand. However given that the supply of workers in lower wage countries far outstrips the demand and that there are far more workers intending to work abroad than there are jobs, migrant workers are highly vulnerable to abuses during recruitment. Such abuses include high fees and costs, misrepresentation, failure to meet placement obligations and contract substitution. 7. Private Recruitment Agencies in Asia Country of origin governments have generally responded with regulation in terms of licensing requirements, a limit on fees and a complaint mechanism. Some have also provided performance based incentives. Information campaigns have been mounted against illegal recruitment. 7

8 8. Improving Recruitment Policies and Practices 1. Assess ratification of C 181. Put in place legislation to regulate recruitment. 2. Ensure that a complaints mechanism is in place and support services to avail of the mechanisms. 3. Consider more options for matching employers and job seekers: not only via private recruitment agencies, but also via public placement agencies, direct employer worker (with labour attaché attestation where necessary); 4. Reduce layers of intermediation e.g. role of Khafeels in the Gulf States, promote direct recruitment by Employers (e.g. Farmers Union in Catalunya, Spain, e recruit with labour attaché attestation); 8. Improving Recruitment Policies and Practices 6. Transparency in recruitment costs e.g. recent measures in Sri Lanka on cost information in advertisements; 7. Application of technology in recruitment e recruit and skype interviews for domestic workers/employers; 8. More open and simplified labour immigration regimes (linked to labour shortages); 9. Crack down on corruption and over charging connected with the recruitment industry; 10. Development and implementation of codes of conduct in recruitment. 8

9 Thank you For more information, please contact: Nilim Baruah Senior Migration Specialist ILO Regional Office for Asia and the Pacific Tel: , Fax: E mail: baruah@ilo.org 9

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