Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Protection of workers covered by the Convention. With reference to the comments made in 2006 and 2007, the Committee notes the Government’s detailed report for the period ending in May 2009. The Government refers to the provisions of Act No. 18.099 of January 2007 establishing standards for the protection of the rights of workers in relation to company decentralization, as amended by Act No. 18251 of January 2008. The Committee notes with interest that section 7 of Act No. 18251 defines the joint responsibility shared by subcontractors, intermediaries and labour providers regarding labour obligations towards contracted workers. Labour obligations are those concerning the employment relationship which derive from ratified international conventions, laws, decrees, awards, decisions on wage agreements or registered collective agreements, or from information contained in the staff register. The report also refers to provisions of the collective agreement for enterprises that supply labour for work in green areas, call centres, shopping centres and IT companies, which came into force at national level by means of Decree No. 707/008 of 22 December 2008. The Committee notes with interest provisions 17 and 18 of the collective agreement signed in November 2008 which urge the parties to adhere to the gender mainstreaming established in various national legal texts, in Conventions Nos 100, 111 and 156, and in the Mercosur Social and Labour Declaration. Labour supply companies have undertaken to promote gender equality in all employment relationships. To this end, they undertake to respect the principle of non-discrimination at the time of fixing wages, arranging promotions or assigning tasks (Article 5 of the Convention). Furthermore, the Committee notes the new approach included in provision 21 of the collective agreement, in which the parties declare that the supply of workers through companies registered with the National Employment Directorate (DINAE) constitutes a means of combating informal employment as well as contributing to decent work. The Committee requests the Government to send in its next report the text of any court decisions interpreting Act No. 18251 and ensuring the effective protection that must be afforded to workers covered by Convention No. 181 (Part IV of the report form). The Committee also requests the Government to supply information on the number of workers protected by the Convention, the number and nature of infringements recorded and any other relevant information on the practical application of the Convention (Part V of the report form).

Regulation of private employment agencies. Controls and penalties. The Committee notes that, by means of section 343 of Act No. 18362 of October 2008, new duties were assigned to DINAE giving it the power to register, authorize, keep information on and control private employment agencies. The Government indicates that, even though the employers and workers have been consulted, the decree implementing section 343 of Act No. 18362 has not yet been approved. DINAE is therefore in the process of restructuring in order to implement the assigned duties. The Committee hopes that the Government will be in a position in its next report to announce that an implementing decree has been approved ensuring that DINAE can effectively supervise the operation of companies that supply labour and also regulate the services that are still provided by former employment agencies (Article 3). The Government recognizes in its report that in practice there are problems of supervision when an agency that has been penalized closes down and the persons involved set up a new company which applies to DINAE to receive new authorization. The Committee therefore hopes that steps will be taken to ensure that adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies (Article 10). DINAE and other competent public authorities (such as the labour inspectorate) should have sufficient resources to take remedial action to ensure the application of the relevant national legislation (Article 14).

Exceptions. The Government points out that the categories of workers and types of services in respect of which exceptions are authorized have not yet been determined in view of the fact that the implementing decree has not yet been approved. Should the exceptions provided for in Article 7(2) of the Convention be authorized, the Committee requests the Government to provide the relevant information and give the reasons therefor (Article 7(3)).

Migrant workers. The Committee notes the general legislation that ensures the right to work and equality of treatment of migrant workers. The Government also mentions the agreement against the illegal traffic in migrants between the Mercosur States Bolivia and Chile, signed in Belo Horizonte on 16 December 2004. The Committee requests the Government to provide further information in its next report on the manner in which penalties are laid down against agencies covered by the Convention which engage in fraudulent practices and abuses (Article 8(1)). The Committee also requests the Government to include information on labour agreements outside the Mercosur area in relation to the matters covered by the Convention (Article 8(2)).

Cooperation between public services and private agencies. Compilation and dissemination of information. The Committee hopes that the Government will include information in its next report on the progress made in ensuring cooperation between the public employment service and private employment agencies (Article 13(1)). It also requests the Government to provide examples of the information communicated by private employment agencies to the competent authorities and information on the operation of private employment agencies which is made publicly available (Article 13(3) and (4)).

[The Government is asked to reply in detail to the present comments in 2012.]