Comments of the EU Fundamental Rights Agency. Employment and Recruitment Agencies Sector Discussion Paper. Introduction

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1 Comments of the EU Fundamental Rights Agency on the Employment and Recruitment Agencies Sector Discussion Paper of 23 May 2012, produced by The Institute for Human Rights and Business (IHRB) & Shift Introduction The Project team which has produced and published the discussion paper for public comment has invited all interested stakeholders to provide written comments in particular on four questions. The EU Fundamental Rights Agency would like to use the opportunity to comment on some more general aspects. 1. General Comments The Guidance has to achieve the right balance between EU specificity and the international dimension. The EU Agency for Fundamental Rights notes that the draft discussion paper needs to emphasise more the EU specificity especially as the Guidance is undertaken under the auspicies of the European Commission and should be compatible with the EU Charter of Fundamental Rights as well as other European regional instruments for human rights. Some of the comments by the Agency relate directly to this aspect. a. Human rights obligations and responsibilities of private actors? It will be recalled that according to the prevailing understanding of international human rights law, human rights provisions only in certain, rather exceptional cases directly bind private actors. Such immediate obligations of non- state actors arise, to give an example, under the Rome Statute with regard to crimes against humanity which include certain particularly severe forms of forced labour (enslavement, enforced prostitution, the exercise of powers of ownership over a person in the course of trafficking in persons etc.) if committed in a widespread or systematic manner. However, obligations on private actors usually do not derive directly from the norms of international human rights law but originate from states obligations to, not only respect but also, effectively ensure and protect the human rights of individuals against violations on the part of other private actors and to grant effective access to justice in case of such violations. These indirect horizontal effects of human rights depend on the translation of a state s human rights commitments into national law. Therefore, next to the exceptional cases of direct obligations of private individuals under international human rights law mentioned above, there are no human rights obligations of business enterprises unless they are defined as legal provisions at state level. Within the Protect, Respect and Remedy - Framework, this

2 basic function of transferring international into national law is captured by the first and third pillar of the framework. Therefore, when referring to human rights, what the second pillar of the Guiding Principles has in mind are norms of soft law, such as the OECD Guidelines for Multinational Enterprises, the ten principles of UN Global Compact or the ILO Tri- partite Declaration of Principles on Multinational Enterprises and Social Policy. The comments on Principle 12 state clearly: The responsibility of business enterprises to respect human rights is distinct from issues of legal liability and enforcement, which remain defined largely by national law provisions in relevant jurisdiction. Undoubtedly, such norms of soft law can be of considerable value. Firstly, they can have an immediate relevance for the orientation in mediation proceedings as well as for public discourses. Secondly they can complement legal norms. Indeed, national laws will often not achieve more than rather general and wide- meshed parameters, like the obligation of enterprises to act with due diligence with regard to the rights of third parties. In order to assume a definite form, such duties can only benefit from being complemented by concrete regulatory standards. Thus a discourse by stakeholders in a certain economic sector serves to develop inside- out concrete and widely shared due diligence standards which, even if per se not legally binding, when broadly accepted and regularly referred to, could serve as an important point of orientation in proceedings and support courts in performing their functions when determining the scope of due diligence standards. Thirdly, norms of soft law have a considerable potential to develop into full- fledged legally binding human rights standards. Nonetheless, it is important to remember the huge difference between legally binding human rights law and standards which are of a political, economic or moral nature. Surely, human rights standards must not be watered down to principles which are taken into account on a voluntary basis. Such a deflation would obviously overlook core elements of the human rights concept, such as the rule of law, the effective protection of human rights by deterrent sanctions and the right to an effective remedy and access to justice, which intrinsically link human rights to legal systems. Full- fledged human rights are not available at the discount of these elements of efficiency and reliability. b. What human rights? the EU Charter of Fundamental Rights Concerning the range of human rights which need to be considered the draft refers to the UN Protect, Respect and Remedy Framework and to the UN Guiding Principles on Business and Human Rights. The Commentary to Principle 12 stresses that business enterprises can have an impact on virtually the entire spectrum of internationally

3 recognised human rights; their responsibility should therefore apply to all such rights. Therefore, it would appear that the term human rights is used in the broadest possible sense of the term. On this basis, the EU Fundamental Rights Agency would like to underline the need to take the relevant provisions of the EU Charter of Fundamental Rights (the Charter ) into account. In fact, the discussion paper does not mention the Charter once, or the European Convention on Human Rights. It is important to stress that provisions relating to human rights at the national level are binding on companies. It is therefore important that the connections between national provisions and the various pieces of EU legislation are made apparent in the Guidance. The Guidance should also reference relevant EU legislation. For this reason, while it is certainly true that employment and recruitment agencies operate (also) at a global level, nevertheless all action taken within the framework of the European Union would need to be guided by the Charter. After the entry into force of the Lisbon Treaty, the Charter of Fundamental Rights of the European Union has become a point of reference for the development of EU policies. The European Commission has also adopted a Strategy on the effective implementation of the Charter setting an objective that the EU sets a good example as regards the respect of fundamental rights when the Union legislates i. In addition, the Court of Justice of the European Union has increasingly referred to the Charter in its decisions and it is anticipated that national courts will more and more refer to the Charter as well. The Human Rights Guidance should therefore have to be compatible with the EU Charter of Fundamental Rights. In the given context of the work of employment and recruitment agencies there are specific rights, such as the access to a free placement service or the freedom to conduct a business, which are quite particular when compared to international human rights law. Therefore, while the final guidance may strive to be as globally relevant as possible, any action taken by an EU institution would nevertheless have to respect EU fundamental rights standards. In particular, the following Articles of the Charter should serve as an orientation: Human dignity (Article 1) The prohibition of slavery, forced labour and trafficking in human beings (Article 5); The freedom to conduct a business (Article 16) and the right to property (Article 17); Equality before the law (Article 20) Non- discrimination (Article 21) Equality between men and women (Article 23) The rights of the child (Article 24) Integration of persons with disabilities (Article 26)

4 Workers right to information and consultation within the undertaking (Article 27); The rights of collective bargaining and action (Article 28); The right of access to a free placement service (Article 29); The right of every worker to protection against unjustified dismissal (Article 30); The right of every worker to fair and just working conditions, which respect their health, safety and dignity (Article 31); The prohibition of child labour and protection of young people at work (Article 32); In case of violations of fundamental rights, the right to an effective remedy and to a fair trial (Article 47). In addition, any follow up work by EU institutions or bodies such as the Fundamental Rights Agency would use the Charter as their primary reference point for any human rights impact assessment or analysis. c. Due diligence standards and codes of conduct Beyond the extent to which these rights are recognized and effectively protected by legal systems and jurisdictions, due diligence standards should be designed with a view of serving as an additional, second line of defense and to complement the area of legal protection by an additional cordon sanitaire. To give an example, with regard to trafficking, forced labour and other severe forms of labour exploitation the guidance should come up with concrete standards of conduct which reduce the victimisation risk of workers, such as the requirement of a written contract in the language of the worker, spelling out in comprehensible terms the most important conditions of employment and handed out in advance, or an obligation on enterprises which make use of the services of E&R agencies to satisfy themselves of the quality of the agency engaged, or a strict prohibition of all employers and intermediaries to store the passports of employees etc. A concrete code of conduct could serve to identify human rights due diligence standards. d. Positive duty to promote, respect and protect human rights and positive action The Guidance should make a reference to a positive duty to promote, respect and protect human rights. Positive duties have been developed at the national level and can support a system of monitoring and reporting on policies and actions related to human rights in particular by national employment and recruitment agencies operated by governments. The positive duty is particularly relevant in relation to equality. In addition, positive action by the employment, recruitment and placement services would be of benefit for those groups most vulnerable to discrimination and unequal treatment.

5 2. DEFINING THE SECTOR The Human Rights Guidance should mention specifically public sector recruitment/employment service centres or agencies and any mechanism including online facilitation which plays a role in the recruitment and/or placement services sector. This should include services offered nationally, cross border or European wide. Under Other types of intermediary structures the Guidance should include agents who provide information to recruitment and placement services for example on the movement, migration, financial remuneration and demographics of workers. It should also include travel and other agencies which operate for example model, entertainment and mail- order bride services. 3. KEY HUMAN RIGHTS IMPACT a. Freedom of Movement The Guidance should include a reference to freedom of movement in relation to EU citizens and the important role of employment, recruitment and placement services in ensuring full respect of this right. Labour market mobility is one of the ways to balance the disparity between unemployment levels and skills shortages within the Union with regard to EU citizens. The concern from a fundamental rights perspective is that mobility within the single market may be restricted by informal and formal barriers to movement and placement such as discrimination on the grounds of nationality, ethnicity and age amongst others both by employers and placement services. This may be compounded by informal barriers to information about access to job opportunities, rights to benefits, qualifications for employment, taxation and work permits, cross- border commuting and residence rights within the European Union. From the perspective of the recruitment, employment and placement services informal pressures to ensure jobs are reserved for own nationals may militate against employing nationals from other Member States in some sectors of the labour market. b. Access to free placement services The Guidance should include a reference that the EU Charter of Fundamental Rights guarantees that everyone has the right of access to a free placement service. The charter right on access to a free placement service can facilitate the employment and movement of people by providing them with information on job opportunities, financial rewards, lifestyles and culture, administrative and legal issues, finding accommodation, taxes, cost of living, comparability of qualifications, by matching their skills, education and knowledge to vacancy

6 profiles across the Union. This right should be applied in a non- discriminatory way and monitored for compliance. Non- discrimination should also act as a guiding principle in relation to the attitudes and behaviour of the staff in the recruitment, employment and/or placement service itself. c. Vulnerable groups While understanding the international dimension to employment and recruitment, the Guidance needs to include impacts on EU citizens. An assumption that the most severe or adverse human rights impacts would potentially be suffered by those from outside the Union namely migrant workers does not take away the importance of identifying EU citizens as potential victims. The current economic climate in the EU and the situation of youth unemployment in particular may create conditions for adverse human rights impact and should not be ignored. In addition, the issues related to equal treatment and non- discrimination may have adverse impacts on racial and ethnic minorities, women and persons with disabilities. A particular attention should be given to the situation of Roma given the Union s commitment to a framework for national Roma integration strategies. i Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, 2011 Report on the Application of the EU Charter of Fundamental Rights, COM (2012) 169 Final, Brussels,