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Private Employment Agencies Convention, 1997 (No. 181) - Belgium (RATIFICATION: 2004)

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Application of the Convention in practice. The Government provides in its report information on legislative developments governing private employment agencies and their activities, including statistical data, as well as inspections in the Flemish, Walloon and Brussels-Capital Regions. The Committee notes from the report that 554 private employment agencies operate in the Brussels-Capital Region in compliance with the new provisions for the joint management of the labour market in that region. In the Walloon Region, a total of 657 agencies are operating and providing a variety of employment services. The Committee requests the Government to continue to provide updated information on the manner in which the Convention is applied in all regions of the country.

Article 2(4) of the Convention. Prohibitions and exclusions. The Committee notes that in the Brussels-Capital Region, based on the joint management provisions, temporary work agencies in the construction sector, in addition to a specific licence, must establish a dedicated company as a prerequisite to make construction workers available to third parties in this sector. The Committee further notes that the authorities of Wallonia and Flanders have not availed themselves of the possibility of the exclusions authorized by this provision of the Convention. The Committee requests the Government to provide information on the reasons for the special measures imposed on temporary work agencies in the construction sector in the Brussels-Capital Region and whether the most representative organizations of employers and workers concerned were consulted in this regard. The Committee also requests the Government to continue to provide information on any changes with regard to prohibitions or exclusions envisaged in other regions of the country.

Article 3(2). Regulation. While in general the simplified procedures for private employment agencies operating in the Brussels-Capital Region have not been changed in comparison to the legal framework in force since 2003, the Government indicates that the new joint management provisions require only temporary work agencies in that region to obtain a licence from the Ministry of Labour, based on the recommendation of the Economic and Social Council. For private employment agencies headquartered in the Brussels-Capital Region offering recruitment and selection services, the placement of artists and paid athletes as well as outplacement, the necessity to obtain a licence has been replaced by a certification system administered by the authorities of the Region. Similarly, and giving effect to Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, the system of licensing in Flanders has been retained only for temporary work agencies. The Government indicates that other private employment agencies are no longer required to obtain a licence and that all obligations relating to the legal status of agencies have been waived. In its 2010 General Survey concerning employment instruments, paragraph 240, the Committee indicates that the conditions governing the operation of private employment agencies shall be determined under a licensing or certification system, but may also be otherwise regulated or determined by national law and practice. Therefore, member States have to take action, either directly through the system of legislation, licensing or certification or, indirectly, by authorizing an existing national practice or one that is to be established. The Committee requests the Government to provide information on how private employment agencies in Flanders offering services other than those in the sense of Article 1(1)(b), of the Convention are regulated. It also requests the Government to indicate whether the most representative organizations of employers and workers have been consulted with regard to the legislative reforms in the Brussels-Capital and Flemish Regions.

Article 5(2). Special services. The Government indicates that further to the Flemish Region, based on the provisions for the joint management of the labour market also in the Brussels-Capital Region until 2015, three temporary social agencies have been opened. These agencies aim to facilitate the access of youth between 18 and 30 years of age with little or no skills to sustainable employment, and offer accompanying and coaching within temporary work agencies to achieve a fixed or indefinite work contract. Similar to other temporary work agencies, the temporary social agencies are regulated through licences. The Government reports that in the Flemish Region, the Federation of Private Employment Agencies supports projects to eliminate barriers for the most disadvantaged workers and has developed diversity plans to open private employment agencies and user enterprises to competent employees from diverse backgrounds. The Committee requests the Government to continue to provide information on special services or programmes designed by private employment agencies to assist the most disadvantaged workers and on the results achieved in this regard.

Article 7(2). Exceptions to the principle of gratuity of services. Flexibility device. The Government indicates that in the Brussels-Capital and Walloon Regions the circumstances remain unchanged since the last report. By Decree of 10 December 2010, the Flemish Region decided to deviate from the principle of gratuity of services for workers by allowing private employment agencies to charge or recover fees and costs in cases where: (1) the fee is fixed in advance in a written agreement between the agency and the client; (2) the client agrees prior to the fee being charged; (3) all parties have an original copy of the said agreement. The Committee notes in this regard that for a performing artist the fees are calculated on the basis of the remuneration to be received for the performance, while for a paid athlete the calculation is based on the total anticipated gross annual income for the entire duration of the contract. The Committee requests the Government to indicate whether the most representative organizations of employers and workers were consulted prior to authorizing the charging of fees for paid athletes and performing artists in Flanders and to provide reasons for this exception, as well as to explain to what extent this exception is in the interests of the workers concerned. It also requests the Government to continue to provide information on any changes made to the exceptions authorized in other regions of the country.

Article 8. Protection of migrant workers. The Government states that in the Walloon and Flemish Regions, no bilateral agreements have been concluded. In the Brussels-Capital Region, the Government refers to the general conditions governing the operation of private employment agencies. The Government adds that in Flanders, additional protection is afforded to employees of foreign nationality through regulations concerning the employment of foreign workers. The Committee requests the Government to provide information on the measures taken or envisaged in all regions of the country to ensure adequate protection for and to prevent abuses of migrant workers recruited or placed by private employment agencies.

Article 13. Cooperation between the public employment service and private employment agencies. The Committee notes with interest that, in addition to requiring private employment agencies to contribute to the Regional employment policy and registering their partnerships with the Regional public employment service ACTRIS, the provisions for the joint management of the labour market in the Brussels-Capital Region define the conditions for the creation of a consultation platform for employment. The Committee requests the Government to continue to provide information on the conditions to promote cooperation between the public employment service and private employment agencies.

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The Committee notes the report received in November 2010 in reply to its direct request of 2008. The authorities of the Brussels-Capital Region, the Flemish Region and the Walloon Region have provided full and detailed information on the activities of private employment agencies and the inspections carried out of private employment agencies, as well as statistical data on the number of private employment agencies registered, approved or authorized and the number of workers registered with private employment agencies. The Committee also notes the Decree of 11 May 2009 on the approval of temporary work agencies and the supervision of private employment agencies adopted by the German-speaking Community. It further notes that, according to the contribution to the report by the Brussels-Capital Region, the rise in the activities of reorientation services is likely to continue in view of the financial and economic crisis and the wave of enterprise reorganizations and dismissals experienced by the country. The Committee trusts that the next report will contain updated information on the manner in which the Convention is applied in the four entities of the country.

Article 2(4) of the Convention. Prohibitions and exclusions. In reply to its previous comments, the Committee notes that the authorities of the Brussels‑Capital Region and the Flemish Region have not availed themselves of the exclusions authorized by this provision of the Convention. The Committee once again hopes that, if the authorities of the four regions concerned avail themselves of the prohibitions or exclusions envisaged in paragraph 4, they will provide the information required by paragraph 5.

Article 5(2). Special services to assist the most disadvantaged workers. The Committee notes that in the Brussels-Capital Region temporary social offices under public–private partnerships have been established since 2006 to provide assistance in finding work for a more vulnerable clientele of jobseekers. It also notes the operation in the Flemish Region of a temporary social agency, “Instant A”, the objective of which is to find work rapidly for persons aged between 16 and 30 years in categories that are at risk. The Committee hopes that updated information will be provided in the next report on special services or programmes specially designed by private employment agencies in the various entities of the country to assist the most disadvantaged workers, with particular reference to women and ethnic minorities, in their job-seeking activities and on the results achieved by these services and programmes.

Article 7(3). Authorization of exceptions to the principle of not charging workers any fees for the services provided by private employment agencies. In reply to the previous direct request, the Government of the Brussels-Capital Region indicates that it has not availed itself of the exceptions authorized by this provision of the Convention. In the Walloon Region, section 10(2) of the Decree of 3 April 2009 on the registration and approval of employment agencies provides that a registered employment agency may accept or request any fee from the worker with her or his prior written agreement in the following cases: (a) where it provides job-search services, on condition that the fees are determined in an agreement concluded between the registered employment agency and the worker; and (b) where it consists of a registered agency for the employment of performers or paid sportsmen and women, on condition that: (1) the fee is determined in an agreement concluded between the registered employment agency and the worker, with the requirement for the agreement to contain a cancellation clause; (2) the worker receives a copy of the agreement; and (3) the fee is calculated on the basis of either a percentage of the gross earnings of the applicant, or a fixed flat rate amount. In the German-speaking Community, section 11(16)(3) of the Decree of 11 May 2009 on the approval of temporary work agencies and the supervision of private employment agencies provides that, following the opinion of the Economic and Social Council, the Government may, in the interests of the workers concerned and with a view to improving the matching of job vacancies and applications, determine categories of workers for whom the private employment agency may accept or request any fee from the worker based on the prior written agreement of the latter. The Committee hopes that the next report will contain updated information on the exemptions authorized under Article 7(2) of the Convention in each of the various entities of the country, and the use made in practice of these exemptions.

Article 8. Measures to provide adequate protection for workers and to prevent abuses and fraudulent practices in respect of recruitment, placement and employment. In reply to the previous direct request, the Brussels-Capital Region indicates that no bilateral agreement has been concluded for the protection of migrant workers in respect of recruitment, placement and employment. The Committee hopes that the next report will contain updated information on the impact of the measures taken to ensure adequate protection for and to prevent abuse of migrant workers recruited or placed by private employment agencies. Please also indicate whether bilateral agreements are envisaged, particularly with countries that are not members of the European Union, with a view to protecting migrant workers in relation to their recruitment, placement and employment.

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The Committee notes the Government’s first report on the application of the Convention received in September 2006. It notes the provisions of the Act of 24 July 1987 on temporary and contract work and the hiring of workers by users, and the collective labour agreements which give effect to the Convention. It notes the very full information provided by the authorities of the Brussels-Capital, Flanders and Wallonia regions on the implementation of the Convention. It hopes that the next report will contain updated information on the manner in which the Convention is applied, including extracts from relevant court rulings, extracts from the activity reports of private employment agencies and the labour inspectorate, together with statistical data on the number of workers registered with private employment agencies.

1. Article 2, paragraph 4, of the Convention. Prohibitions and exclusions. The Committee notes that the authorities have not availed themselves of the exclusions authorized by this provision of the Convention. Although this possibility is provided for in the Decree of 13 April 1999 applicable to the Flanders region, the Government of Flanders has not yet invoked the provisions for prohibiting certain activities or excluding certain activities from the scope of the Convention. The Government of Wallonia indicates that it may exclude certain categories of workers based on the structure of the national market, the development of specific sectors or the matching of labour supply and demand. The Committee hopes that if the authorities make use of any prohibitions or exclusions, the reports under article 22 of the Constitution will provide the information required by paragraph 4.

2. Article 5, paragraph 2. Special services to assist the most disadvantaged workers. The Committee hopes that the next report will contain information on special services or programmes specifically designed by private employment agencies to assist the most disadvantaged workers, including women and ethnic minorities, in their jobseeking activities.

3. Article 7, paragraph 3. Authorization of exceptions to the principle of not charging workers any fees for the services provided by private employment agencies. The Committee notes that the authorities may determine, in the interest of the workers concerned or with a view to improving the matching of labour supply and demand, and following an opinion by the Economic and Social Council of the region or community, the categories of workers and services for which the private employment agency may charge a fee to the worker. It hopes that the next report will contain updated information on the exceptions already authorized for the placement of remunerated sports persons and performing artists, and that if any other use is made of this exception, reports under article 22 of the Constitution will contain the relevant information.

4. Article 8. Measures to provide adequate protection for workers and prevent abuses and fraudulent practices in respect of recruitment, placement and employment. The Committee requests the Government to provide information on the impact of the measures taken to provide adequate protection for and to prevent abuses of migrant workers recruited or placed by private employment agencies. Please also indicate whether bilateral agreements are envisaged, particularly with countries that are not members of the European Union, with a view to protecting migrant workers in relation to their recruitment, placement and employment.