Solicitud directa (CEACR) - Adopción: 2015, Publicación: 105ª reunión CIT (2016)

Convenio sobre las agencias de empleo privadas, 1997 (núm. 181) - Macedonia del Norte (Ratificación : 2012)

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Solicitud directa

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The Committee notes the Government’s first report on the application of the Convention and the main provisions regulating the activities of private employment agencies: the Law on Agencies for Temporary Employment, No. 49/06 (as amended), and the Law on Employment and Insurance in a Case of Unemployment, No. bр.37/97.

Article 1(1)(b) and (c) of the Convention. Employing workers with a view to making them available to user enterprises and provision of other services. The Government indicates in its report that the country’s legal framework foresees private employment agencies in the framework of subparagraphs (a), mediation agencies, and (b), temporary work agencies. Employing workers in order to make them available to a natural or legal third-party user is defined in sections 2 and 3 of the Law on Agencies for Temporary Employment. The Committee notes that section 22 of the Law refers to youth cooperatives and their need to reorganize themselves and to rearrange their work in accordance with this Law, indicating that such organizations are apparently active in the sense of Article 1(1)(b) of the Convention. The Committee requests the Government to provide further information on the activities of youth cooperatives and on whether they provide services under Article 1(1)(b) and (c) of the Convention.

Article 2. Scope. The Committee notes that no information was provided in the report with regard to mediation agencies. The Committee requests the Government to indicate whether the Convention applies to all categories of workers and all branches of economic activity or whether recourse has been made to Article 2(4).

Article 3. Legal status and operation. The Committee notes that all private employment agencies require a license. In regard to mediation agencies, the Government indicates that the license is non-transferable and has a two-year validity period with the possibility of being extended for two more years. In regard to temporary work agencies, the Government states that they can only be established by a natural person but not a trade company, as stipulated in section 7 of the Law on Agencies for Temporary Employment. The Committee requests the Government to indicate whether the maximum operation time of mediation agencies is four years. Please also indicate whether a maximum operation time exists for temporary work agencies.

Article 4. Right to freedom of association and the right to collective bargaining. The Government indicates that workers employed by a temporary work agency have the same rights to representation as direct employees of the user enterprise. It further states that the protection of the right to freedom of association in the Labour Relations Law also extends to workers of temporary work agencies. The Committee notes that section 11 of the Law on Agencies for Temporary Employment requires the agreement for ceding a worker concluded between a temporary work agency and a user enterprise to include the “person authorized by the user to represent the employees”. The Committee further notes that the same provision refers to the necessity that the agreement also conforms to collective agreements in relation to salary and social security contributions, allowances and compensation, and holidays and leave. The Committee requests the Government to provide information on the measures taken to give effect to this Article in practice. In this regard, please clarify the requirement to include “person authorized by the user to represent the employees” in section 11 of the Law on Agencies for Temporary Employment in the contract between a temporary work agency and a user enterprise.

Article 5(2). Special services or targeted programmes. The Committee notes that section 15 of the Law on Prevention and Protection against Discrimination lists special measures that are deemed non-discriminatory. Such measures are aimed at equalizing opportunities for women, persons with disabilities and members of minority groups. The Committee requests the Government to indicate whether private employment agencies cooperate in measures enumerated in section 15 of the Law on Prevention and Protection against Discrimination or in other special services or targeted programmes designed to assist the most disadvantaged workers in their jobseeking activities.

Article 6. Processing of personal data. The Committee notes that the report contains information only concerning temporary work agencies referring to different laws, such as the Law on Personal Data Protection. It also notes the possibilities of exceptions for the protection of personal data in the Law on Personal Data Protection, such as processing and disseminating personal data undertaken without consent of the personal data subject, when the processing is necessary for the realization of a contract in which the subject is a contracting party. In addition, data regarding an employee’s membership in a trade union can be processed by any natural or legal person, who, independently or together with others, determines the purposes and the ways of personal data processing in the field of labour law. The Committee requests the Government to provide further information on how it is ensured that the processing of personal data of workers by all private employment agencies is limited to matters related to the qualifications and professional experience of the workers concerned and any other directly relevant information.

Article 7. Fees. The Government indicates that no exceptions are authorized with regard to the charging of fees or costs to workers. In addition, it states that a foreigner can be granted permission to operate a fee-charging temporary employment agency only if there is reciprocity in performing the same mediation activities for temporary employment with the foreigner’s native country. The Committee requests the Government to provide further information on whether foreigners have been granted a license to operate private employment agencies charging fees to workers. Please also include information on any current legislative review process and on the involvement of the social partners therein.

Article 8(1). Protection of migrant workers. The Government indicates that, based on the Law on Employment and Insurance in Case of Unemployment, “labour mediation abroad” is performed on the basis of a bilateral international agreement or treaty or on the basis of a previously signed agreement between the mediation agency and an enterprise that will employ the worker. The agreement has to lay down the conditions and the manner related to the employment mediation and the work of the person referred to employment abroad. The Committee requests the Government to provide information on whether a domestic or foreign mediation agency and a foreign or domestic employer can enter into a “previously signed agreement” without a pre-existing bilateral agreement or treaty between the former Yugoslav Republic of Macedonia and the respective foreign country. Please also provide information on how adequate protection is ensured for migrant workers recruited by domestic private employment agencies, including penal provisions, and which employers’ and workers’ organizations have been consulted.

Article 9. Prohibition of child labour. The Government states that the labour regulations, the provisions for occupational safety and health and for the protection of children and youth cover also workers of temporary work agencies while at the user enterprise. Referring to its comments on the Minimum Age Convention, 1973 (No. 138), and the Worst Forms of Child Labour Convention, 1999 (No. 182), the Committee requests the Government to indicate the legal and practical measures taken or envisaged to ensure that child labour is not used or supplied by private employment agencies.

Article 10. Machinery for investigation of complaints, alleged abuses and fraudulent practices. The Government indicates that the State Labour Inspectorate supervises the application of the laws that regulate private employment agencies and has the authority to revoke a license of private employment agencies in case of legal violations. The Committee requests the Government to provide information on the machinery and procedures in the framework of labour inspection by the State Labour Inspectorate or otherwise for the investigation of complaints concerning the activities of all types of private employment agencies.

Articles 11(c)–(j) and 12. Measures to ensure adequate protection and allocation of responsibilities of temporary work agencies and user enterprises. The Committee notes that, in accordance with the Law on Employment and Insurance in a Case of Unemployment and section 11 of the Law on Agencies for Temporary Employment, the Government lists in its report all topics to be included in the agreement concluded between a temporary work agency and a user enterprise for the purposes of transferring a worker. The Committee recalls that the Law on Employment and Insurance in a Case of Unemployment only regulates the activities of mediation agencies. The Committee further notes that, according to section 11 of the Law on Agencies for Temporary Employment, the information in regard to Article 11(c)–(j) pertains only to the agreement concluded between the temporary work agency and the user enterprise. According to section 13 of the Law on Agencies for Temporary Employment, the employment agreement concluded between the worker and the temporary work agency has to include the amount of the salary, contributions for the salary, allowances, periods and the method of payment and the temporary work agency’s obligations toward the employee during the period of his/her ceding to the user. The Committee requests the Government to provide information on all points referred to in Article 11(c)–(j) and on how the responsibilities are allocated between temporary work agencies and the user enterprises in the areas described in Article 12.

Article 13. Cooperation between the public employment service and private employment agencies. The Government indicates that temporary work agencies have to provide a copy of each agreement signed with a worker to the Public Employment Service Agency (ESA). Mediation agencies have to submit a copy of each contract for mediation in employment abroad to the ESA. Furthermore, the ESA and mediation agencies exchange information about available employment opportunities and reference of unemployed persons for employment. The Committee requests the Government to provide practical information on how the conditions to promote cooperation between the ESA and private employment agencies are formulated, established and reviewed, and to indicate which employers’ and workers’ organizations were consulted. Please also provide examples of the information that private employment agencies provide to the ESA and specify the information that is made publicly available and the intervals at which this is done.

Article 14. Adequate remedies and practical application of the Convention. The Committee requests the Government to provide further information on practical measures ensuring that only licensed private employment agencies are able to operate in the country. It also requests the Government to provide examples of the remedies provided in cases of violations of the Convention by private employment agencies including extracts of inspection reports, information on the number of workers covered by the measures giving effect to the Convention and the number and nature of infringements reported.