Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 181) sur les agences d'emploi privées, 1997 - France (Ratification: 2015)

Autre commentaire sur C181

Demande directe

2022
2018

Afficher en : Francais - EspagnolTout voir

Articles 1(1)(c) and 3 of the Convention. Provision of other services relating to jobseeking. Processing of personal data. The Committee notes the information provided by the Government in its first report on the application of the Convention. However, the Government report does not refer to the provision of the direct employment-related services set out in Article 1(1)(c) of the Convention. With regard to the processing of personal data, the Committee observes that Act No. 2018-493 of 20 June 2018 on the protection of personal data will not be applicable before May 2019. The Committee requests the Government to provide information on any developments relating to the implementation of Act No. 2018-493 of 20 June 2018 on the protection of personal data. It also requests the Government to specify whether private employment agencies and private placement operators (OPPs) are authorized to provide other services relating to jobseeking within the meaning of Article 1(1)(c) of the Convention. If so, the Committee requests the Government to indicate the most representative employers’ and workers’ organizations consulted for this purpose.

Article 3(2). Conditions governing the operation of private employment agencies. The Government indicates that Act No. 2010-853 of 23 July 2010 on consular services, commerce, handicrafts and services has removed the exclusivity obligation in the exercise of for-profit placement activities, as well as the prior declaration obligation for OPPs. It points out, however, that this obligation never entered into force, as the Order envisaged by section R.5323-1 of the Labour Code to establish such an obligation was never published. The Committee observes that section L.1251-45 of the Labour Code provides that the temporary work services can only be provided following a declaration to the administrative authority and that the content and modalities of the declaration are determined by a decree of the Conseil d’Etat. In its 2010 General Survey concerning employment instruments, paragraph 240, the Committee indicates that by virtue of Article 3(2) of the Convention, the conditions governing the operation of private 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 detailed information on the conditions governing the operation of private agencies and to indicate, in particular, whether a certification system has been established. It also requests the Government to provide a copy of the decree of the Conseil d’Etat determining the content and modalities of the declaration to be made by a temporary work enterprise (ETT) prior to operation.

Article 4. Right to freedom of association and the right to bargain collectively. The Government indicates that the provisions of the Labour Code concerning the right to freedom of association and the right to bargain collectively also apply to OPPs. The Committee requests the Government to indicate whether the provisions of the Labour Code concerning the right to freedom of association and the right to bargain collectively also apply to temporary workers at user enterprises and to specify to what extent they apply.

Article 5(2). Special services or targeted programmes designed to assist the most disadvantaged workers. The Government does not provide any information on this subject. The Committee requests the Government to provide information on the nature and scope of the special services or targeted programmes implemented by private employment agencies to help the most disadvantaged workers find employment. It also requests the Government to indicate the measures taken or envisaged to encourage private employment agencies to help disadvantaged workers.

Article 6. Processing of personal data. The Government indicates that Decree No. 2016-729 of 1 June 2016 on the information system concerning jobseekers and employees implemented by the employment service (Pôle emploi) (adopted further to the opinion of the National Committee on Information Technology and Liberties issued by Deliberation No. 2015-371 of 22 October 2015) authorizes any processing of personal data relating to jobseekers and employees, including complaints and disputes, as well as fraud prevention and anti-fraud measures. It adds that the contracts through which the employment service subcontracts the provision of services for jobseekers to placement or training bodies contain provisions which ensure the security of jobseekers’ personal data and the proportionate use of such data and also require the destruction of such data at the end of the necessary period of use. In this regard, the Government refers to sections R.5323-9 to R.5323-11 and R.5323-14 of the Labour Code. The Committee observes that Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, entered into force on 25 May 2018 and provides for the regulation of data protection in the European Union. The Committee requests the Government to provide information on the existence of other mechanisms designed to protect personal data arising from the implementation of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.

Article 7(2) and (3). Exceptions to the principle of free services. The Government indicates that section L.5321-3 of the Labour Code lists two exceptions to the principle of free services: artistic agencies and athletic agencies. It specifies that these exceptions are the result of the particularities specific to the work of performing artists and professional athletes. In its General Survey of 2010 concerning employment instruments, paragraph 334, the Committee observes that prior to the authorization of the exceptions to charge fees or costs, the most representative organizations of employers and workers have to be consulted to ensure that they can express their views and share their experiences and concerns regarding the use of this provision. The Committee requests the Government to indicate whether the most representative organizations of employers and workers have been consulted about these exceptions. It also requests the Government to include up-to-date information on the implementation of these exceptions in ETTs.

Article 8(1) and (2). Protection of migrant workers. The Government indicates that the sections of the Labour Code concerning the regulation of migrants’ work also apply to private operators. The Committee observes that the provisions on temporary work are applicable to the employees dispatched by an ETT in the framework of a placement, except for the provisions of sections L.1251-32 and L.1251-33 of the Labour Code on open-ended contracts. The Committee also observes that section L.1261-2 of the Labour Code establishes that the obligations and prohibitions which apply to French enterprises when they use service providers, particularly those relating to illegal work, apply under the same conditions when the services are provided by foreign enterprises dispatching personnel to France, in accordance with the modalities established by decree of the Conseil d’Etat. The Committee requests the Government to provide a copy of the abovementioned decree and to specify which sections of the Labour Code concerning the regulation of migrants’ work also apply to ETTs. It also requests the Government to provide further information on exceptions to the provisions on temporary work applicable to employees dispatched by an ETT and to indicate whether the most representative employers’ and workers’ organizations have been consulted on this matter. The Committee requests the Government to indicate whether bilateral agreements have been concluded to prevent abuses and fraudulent practices in recruitment, placement and employment.

Article 9. Prohibition of child labour. The Government indicates that the sections of the Labour Code concerning the prohibition of child labour also apply to private operators. The Committee refers to its comment of 2004 on the application of the Minimum Age Convention, 1973 (No. 138), and requests the Government to provide information on the application in practice of the conditions and hours of work of child models working for agencies holding a licence.

Article 10. Machinery and procedures for the investigation of complaints, alleged abuses and fraudulent practices. The Government does not provide any information on this subject. The Committee requests the Government to provide a description of the procedures and the machinery for the investigation of complaints concerning the activities of all private employment agencies.

Article 11(a), (b), (e) and (j). Measures to ensure adequate protection for the workers employed by private employment agencies. The Government does not provide any information on this subject. In its General Survey of 2010 concerning employment instruments, paragraph 313, the Committee highlights the need to have a clear legal framework in place to secure adequate protection in the areas enumerated in Articles 11 and 12 of the Convention. Given the particularities of working arrangements in which employees work for a user enterprise that assigns and supervises the execution of the work and the indeterminacy of responsibility, it is necessary for member States to address these particularities through measures that ensure that in each case responsibility is effectively determined. The Committee requests the Government to provide detailed information on the provisions ensuring adequate protection for the workers employed by private employment agencies in relation to freedom of association, collective bargaining and social security. It also requests the Government to provide detailed information on the provisions ensuring adequate protection for the workers employed by an ETT in relation to maternity protection and benefits, and parental protection and benefits.

Article 12(a), (b) and (i). Responsibilities of private employment agencies and of user enterprises. The Government does not provide any information on this subject. The Committee requests the Government to indicate the way in which responsibilities are allocated between the private employment agencies and the user enterprises in relation to collective bargaining, minimum wages, maternity protection and benefits, and parental protection and benefits.

Article 13(1), (3) and (4). Cooperation between the public employment service and private employment agencies. The Government indicates that section L.53311-4 of the Labour Code provides that the following entities “may also participate in the public employment service: 1. public or private bodies whose object is to provide services relating to the placement, integration, training and assistance of jobseekers; …”. It adds that the law also establishes the missions of the tripartite multi-year agreement concluded by the State, the National Interoccupational Union for Employment in Industry and Commerce (Unédic) and the employment service, which must set out, in particular: “… 4. The conditions of recourse for the private bodies providing a placement service referred to in section L.5311-4” (section L.5312-3). The Government indicates that the tripartite agreement signed on 18 December 2014 between the State, Unédic and the employment service for the period 2015–18 established the conditions of recourse for OPPs. It adds that the employment service is working with local partnership service providers, at the local level, to provide an exchange of information to improve the quality of assistance for jobseekers. The Committee observes that, in accordance with section R.5323-7 of the Labour Code, OPPs regularly send statistical information on their placement activities to the prefect (préfet). The Committee requests the Government to send a copy of the statistical information provided by the OPPs on their placement activities. It also requests the Government to provide information on the implementation, in practice, of the measures taken to promote cooperation between the public employment service and private employment agencies. The Committee further requests the Government to indicate the most representative organizations of employers and workers consulted on this matter.

Article 14(2) and (3). Adequate remedies. The Government indicates that the sections of the Labour Code concerning labour inspection also apply to private operators. In this context, the Committee observes that the employment service monitors the quality of the services provided by the OPPs it uses. Although the Government does not provide any information on this subject, the Committee observes that, under section L.1255-1 of the Labour Code, ignorance of the conditions governing the provision of temporary work services shall be punished with a fine of €3,750. The Committee requests the Government to provide detailed information on the implementation of section L.1255-1 of the Labour Code. It also requests the Government to provide detailed information on the monitoring by the employment service of the quality of the services provided by the OPPs.

Application of the Convention in practice. The Government indicates that, in 2016, the employment service recorded that the services subcontracted to OPPs had been used 912,674 times. The Committee requests the Government to provide general information on the manner in which the Convention is applied, including extracts from the reports of the inspection services, as well as any available statistics on the number of workers covered by the measures giving effect to the Convention.