Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Repetition

The Committee notes the Government’s report received in February 2011 in reply to its 2008 direct request, which includes comments by the Confederation of Independent Trade Unions of Bulgaria (KNSB). The Committee also notes the 2010 amendments to the Employment Promotion Act (EPA) and to the Ordinance regulating the conditions for carrying out employment intermediation activities. These amendments concern, inter alia, the requirements and procedure for the registration of private employment agencies acting as employment mediators and the establishment of an electronic database of registered private employment agencies managed by the Employment Agency (EA), which is directly accessible to the labour inspectors.

Article 1(1)(b) of the Convention. Services provided by the agencies covered by the Convention. In its previous comments, the Committee noted that temporary work agencies were partially regulated by the Health and Safety Labour Conditions Act (ZZBUT). The KNSB indicates that the National Council for Tripartite Consultation (NCTC) authorized the social partners to prepare a national agreement for regulating private employment agencies. A working group was established for this purpose from March to November 2010. The KNSB proposed that services provided by temporary work agencies be covered by a general legal framework regulating private employment agencies. However, its proposal was rejected because the Government considered that temporary work agencies should be covered by ad hoc legislation. The main issue on which the social partners were unable to agree was related to restrictions to the activities of temporary work agencies with respect to certain categories of workers, which is provided for by Article 2(4) of the Convention. The KNSB recalls that employment intermediation, which is regulated by the EPA, consists of assisting and facilitating the establishment of an employment relationship between the employer and the jobseeker. The main characteristic of intermediation is that the intermediary is not a party to the employment contract between the employer and the jobseeker. The KNSB reckons that the system of employment intermediation reflects the Bulgarian legal and economic framework and operates effectively. On the contrary, the services provided by temporary work agencies do not correspond to the current labour market. Considering the serious violations of labour legislation, the introduction of these services would lead to a serious distortion of the labour market. In addition, the KNSB points out that currently there is no regulation of the employment relationships associated to services provided by temporary work agencies. In fact, the provisions of the ZZBUT concerning such agencies are isolated and limited in scope. The Labour Code contains provisions which exceptionally allow the employer to assign workers to temporarily perform other work in another undertaking (sections 120(1) and 267). The KNSB stresses that the eventual regulation of services offered by temporary work agencies should be very restrictive and ensure additional protection to employees recruited for working in user enterprises. The Government indicates that the regulation of temporary work agencies represents an opportunity to introduce new employment relations that will meet both the needs of employers in hiring a flexible workforce and the needs of workers in finding a work/life balance. These relations will not only contribute to establish an equal treatment between the working conditions of employees hired by temporary work agencies and other employees, but will also meet the dynamics of the local labour market. The Government states that the lack of tripartite consensus over the regulation of the activities of temporary work agencies represented a missed opportunity for the implementation of Convention No. 181 on the one hand, and for the transposition of Directive 2008/104/EC on temporary agency work, on the other hand. In its 2010 General Survey concerning employment instruments, the Committee highlighted the importance of establishing a clear legal framework which regulates the services provided by temporary work agencies and ensures adequate protection to workers employed by temporary work agencies in the areas enumerated in Articles 11–12 of the Convention (paragraph 313). The Committee invites the Government to provide information on the adoption of any legislation which regulates the services provided by temporary work agencies in a way to ensure adequate protection for the workers employed by them in all areas covered by Articles 11–12 of the Convention.

Article 8. Measures to provide adequate protection for migrant workers and prevent abuses and fraudulent practices in their recruitment, placement and employment. The Government indicates that complaints regarding abuses against migrant workers are reported to the General Labour Inspectorate Executive Agency (GLIEA), which is in charge of carrying out the relative inspections and imposing sanctions. The employment services in EU Member States collaborate with regard to the employment of migrant workers. In case of abuses committed against migrant workers, countries shall notify each other of the inspections carried out and sanctions imposed. The Government indicates that no bilateral agreements were signed to prevent abuses and fraudulent practices regarding the employment of migrant workers. The Committee requests the Government to provide information on the number and nature of any infringements reported and penalties imposed in relation to abuses and fraudulent practices in recruitment, placement and employment of migrant workers.

Article 13. Cooperation between the public employment service and private employment agencies. The Government indicates that the EA receives quarterly reports from private employment agencies, which follow the forms adopted by the EA. These reports are published on the EA website and recorded in its annual Action Plan. They include information on registered jobseekers, persons placed by intermediaries, and employers who used their services. The Government further indicates that the recent introduction of the obligation for intermediaries to submit to the EA information regarding vacancies notified to them enabled the creation of a single portal for vacancies in the country where jobseekers can be informed quickly and free of charge of job opportunities. The Government reports that registered private employment agencies and local EA offices cooperate through collaboration agreements as equal partners in a joint and transparent mediation. As of May 2010, a total of 43 agreements were signed between local EA offices and private employment agencies, which were aimed at exchanging information on job vacancies, carrying out joint meetings with employers, sharing experiences and best practices. The Committee requests the Government to continue to provide practical information on the cooperation between the local Employment Agency offices and private employment agencies and the results thereof.

Article 14. Adequate remedies. Practical information. The Government indicates that the 2010 amendments to the EPA included an increase in fines for agencies performing intermediary activities in violation of the requirements fixed by the law. The Committee notes the statistical data provided by the Government regarding the inspections carried out and violations of the legislation regulating the performance of employment intermediation activity. The Government indicates that, since the beginning of 2010, the number of violations by private employment agencies of the requirements for performing intermediation activities decreased compared to the same period in 2009. This trend can be partly explained by the fact that some non-compliant agencies have been repeatedly inspected since 2008 and agencies which are inspected for the first time generally commit a higher number of violations compared to those that have already been inspected. A significant part of registered agencies reported not to be acting as employment mediators due to the economic crisis. In fact, many of them attributed the violation of their information obligations towards the EA to the non performance of employment intermediation activity. The Government also indicates that some of the registered private employment agencies reported to act as temporary work agencies abroad and placed their employees in foreign countries. The Government concludes that it is appropriate to continue to carry out inspections on agencies acting as employment mediators. The Committee requests the Government to continue to provide information on inspection reports and on the number of workers covered by the measures giving effect to the Convention (Articles 10 and 14 and Part V of the report form).