Private Employment Agencies Convention, 1997 (No. 181) - Spain (RATIFICATION: 1999)

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The Committee notes the observations of the General Union of Workers (UGT) and the Trade Union Confederation of Workers’ Commissions (CCOO), received on 27 July and 11 August 2017, respectively. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 1 September 2017, supporting the observations made by the Spanish Confederation of Employers’ Organizations (CEOE). The Committee also notes the Government’s replies in this regard.

Article 13 of the Convention. Cooperation between the public employment service and private employment agencies. In its previous comments, the Committee requested the Government to indicate how, following prior consultations with the social partners, the arrangements are revised for cooperation between the public employment service and private employment agencies in the context of the framework agreement with employment agencies for collaboration with public employment services on the labour market insertion of jobseekers concluded in 2014 between the public employment service and employment agencies. The UGT reiterates its previous observations that the social partners did not participate in the development or implementation of the framework agreement, as their participation in the monitoring committee for the framework agreement was not stipulated. The UGT asserts that employment policies have not been set in relation to private employment agencies in consultation with the social partners, which has hampered them in performing their functions in the bodies in which they participate: the national employment system and the public employment service. The UGT also alleges that the social partners did not participate in the design and development of the tender documents for private employment agencies, nor in their monitoring and evaluation. The UGT also affirms that the social partners were not involved in determining the amount of the annual budget of the Public State Employment Service (SEPE) that would be allocated to public–private collaboration. The UGT indicates that it has finally received information from the Central Executive Committee of the SEPE, following repeated requests, in relation to the development of the framework agreement and its adoption, implementation and its extension until June 2018. In its observations, the CCOO alleges non-compliance with Article 13 of the Convention by the Government and reiterates its previous comments in which it alleged the systematic absence of social dialogue. In its response to the observations of the workers’ organizations, the Government indicates that it provided information on the framework agreement in the meeting of the National Employment System General Council on 24 July 2013. Regarding the observations of the CCOO, the Government adds that, since 2012, the European Union has been making recommendations to the Spanish Government, in the context of the European Semesters, regarding the need to strengthen public–private collaboration between the public employment service and private employment agencies, in order to improve the assistance provided to jobseekers. The Government indicates that, with a view to achieving this goal, it has been promoting the activities of private employment agencies to supplement the action of the public employment service. The Government adds that Royal Decree No. 1796/2010 of 30 December establishes the private employment agencies as collaborating entities of the public employment service, from which they may receive funding. The Government adds that the social partners were kept informed, via the Central Executive Committee, of the bidding process for the selection of the 80 employment agencies and other aspects of the framework agreement. The UGT indicates that little information was communicated to the social partners and many issues remain to be resolved, such as the content of the private contracts signed by private employment agencies and the regional governments of the Autonomous Communities, which address issues that were not contemplated in the framework agreement or set out in the list of conditions. The UGT indicates that the social partners are not aware of the placement objectives that must be met by private employment agencies, the payments made to private employment agencies, the selection criteria for unemployed persons whose placement will be managed by private employment agencies, the possibility for unemployed persons to choose between the public employment service or a private employment agency, the consideration of placement time and whether contracts are temporary or part time, the requirement to accept employment considered to be underemployment and the related consequences for the unemployed person. In their observations, the CEOE and the IOE assert that, in light of the current unemployment rate, the assistance of the private sector is decisive and urgent. They indicate that the implementation of the public–private collaboration model in employment placement is hampered by administrative constraints, as private employment agencies are seen as competitors by the public sector. As a result, private employment agencies are required to place unemployed persons with a full-time employment contract of at least six months within period of eight months. In its response, the Government indicates that private employment agencies can act independently but in coordination with the public employment service, and/or as collaborating entities through a partnership agreement. The Government specifies that, following the amendment introduced by Royal Legislative Decree No. 8/2014 of 4 July, private employment agencies do not need the authorization of the public employment service; it is sufficient for them to present a declaration to the competent public employment service before taking action. The private employment agencies must also carry out their activities in conformity with the provisions of the partnership agreement, providing the information required by the agreement and guaranteeing that the services funded by the public employment service are free-of-charge for workers and employers. The Committee recalls that, under Article 13 of the Convention, in accordance with national law and practice, consultations shall be conducted with “the most representative organizations of employers and workers” to establish and periodically review conditions to promote cooperation between the public employment service and private employment agencies. The Committee reiterates its request to the Government to indicate the manner in which, following prior consultation with the social partners, the arrangements are revised for cooperation between the public employment service and private employment agencies in the context of the 2014 framework agreement. The Committee also requests the Government to provide updated information on the status of the framework agreement, its content, the number of private employment agencies it covers and the conditions under which these agencies carry out their work at the level of the Autonomous Communities.

Legislative developments. The Committee notes the information provided by the Government in its report on the legislative changes introduced in relation to employment agencies and temporary work agencies under Act No. 18/2014, of 15 October, approving urgent measures for growth, competitiveness and efficiency; and Royal Decree No. 4/2015, of 29 May, approving the regulations covering temporary work agencies. The Committee requests the Government, taking into account the relevant provisions of the legislation in force (Act No. 18/2014 and Royal Decree No. 4/2015), to provide detailed information on the impact in practice of the legislative changes on the activities of private employment agencies, and particularly of temporary employment agencies. The Committee requests the Government to provide detailed information on the manner in which it is ensured that private employment agencies, including temporary work agencies, apply the principle of non-discrimination and provide services to their clients that facilitate their access to decent work, avoiding instances of underemployment and discrepancies between the remuneration received by temporary workers and that received by employees of the client enterprise.

Judicial decisions. The Committee notes with interest the court rulings provided by the Government related to the activities of private employment agencies and the labour rights of temporary workers. The Committee requests the Government to continue providing copies of court rulings relevant to the application of the principle of the Convention.

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The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO) included in the Government’s report. In addition, the Committee notes the observations of the General Union of Workers (UGT), the Spanish Confederation of Employers’ Organizations (CEOE), and the International Organisation of Employers (IOE), received on 1 September 2015. The Committee also notes the Government’s reply to those observations, received on 11 November 2015.

Article 13 of the Convention. Cooperation between the public employment service and private employment agencies. In its previous comments, the Committee requested the Government to provide its comments on the concern expressed by the CCOO relating to a framework agreement with employment agencies concluded by the public employment services in 2014. The Government indicates in its report that, in the meeting of the General Council of the National Employment System on 24 July 2013, information was provided on the framework agreement with employment agencies respecting collaboration with public employment services for the placement of the unemployed in the labour market. The Government adds that the central executive committee kept the social partners informed of the tender procedure for the selection of 80 employment agencies and other aspects of the framework agreement. In its new observations, the CCOO considers that the public services continue to be dismantled in the interest of private employment agencies, as demonstrated by the legislative amendments approved and the budgetary allocations for employment policy. The CCOO is not opposed to public–private partnership, as long as it does not involve a deterioration of the public services. The UGT expresses doubt on, among other issues, the placement objectives that must be met by the private employment agencies, the types of fees they can charge, the selection criteria for unemployed persons whose placement is administered by private employment agencies, and the possibility for unemployed persons to choose between the public employment service and the private employment agencies. The UGT also points out that the allocation set aside for the private employment agencies rose from €30 million in 2014 to €140 million in 2015, and the total is expected to rise to €175 million. The UGT considers that the decision is disproportionate and rushed as there has been no evaluation of the work carried out by the agencies. The CEOE and the IOE consider that, with the current employment rate, the support of the private sector is urgent and decisive. The work of private employment agencies is hampered by administrative difficulties, such as the requirement for private agencies to find unemployed persons a placement with an employment contract for at least six months full-time work during any eight month period, which is not a requirement in other European countries. The CEOE and the IOE consider that it is still necessary to improve the mediation mechanisms for employment, with the help of public–private partnership. In its reply, the Government indicates that the amounts received by employment agencies collaborating with the public employment service are determined by the placement work for the unemployed, on the basis of the contractual period of the person employed. The Government emphasizes that the payment system adopted by the framework agreement is based on payment by results, which is consistent with rules governing public contracts. The Committee recalls the requirement in the Convention that, in accordance with national law and practice and “after consulting the most representative organizations of employers and workers”, conditions shall be established and periodically reviewed to promote cooperation between the public employment service and private employment agencies. The public authorities are required to retain final authority for utilizing and controlling the use of public funds earmarked for the implementation of the labour market policy. The Committee requests the Government to indicate how, after consulting the social partners, the arrangements are revised for cooperation between the public employment service and private employment agencies in the context of the 2014 agreement.

Legislative developments. The Committee notes the information provided by the Government in its report on the legislative amendments relating to the placement agencies and the temporary work agencies introduced by Act No. 18/2014 of 15 October adopting urgent measures for growth, competitiveness and efficiency; and Royal Decree No. 4/2015 of 29 May, approving the regulations on temporary work agencies. The Committee requests the Government, taking into account the relevant provisions in the legislation in force (Act No. 18/2014 and Royal Decree No. 4/2015) for each Article of the Convention, to provide a report containing replies to all the questions in the report form on the application of the Convention.

[The Government is asked to reply in detail to the present comments in 2017.]

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Articles 1(c), 3 and 13 of the Convention. Prior consultation of the social partners. Cooperation between the public employment service and private employment agencies. The Committee notes the Government’s report, which enumerates the legislative and administrative measures adopted up to June 2014, and includes the observations made by the Trade Union Confederation of Workers’ Commissions (CCOO). The Government indicates that Act No. 35/2010 of 17 September establishing urgent measures for reform of the labour market legalized fee-paying employment agencies and increased the functions attributed to employment agencies in the management of active employment policies and in the re-employment of workers dismissed as a result of enterprise restructuring processes (agencies covering any of the services envisaged in Article 1(a) and (c) of the Convention). The Government adds that Act No. 3/2012 of 6 July establishing urgent measures for reform of the labour market provided for the recognition for temporary work agencies as a powerful means of dynamizing the labour market, and therefore authorized them to operate as employment agencies (agencies covering the services envisaged in Article 1(b) of the Convention). The Government provides information on the framework agreement with employment agencies respecting collaboration with public employment services for the placement of the unemployed in the labour market, which gave rise to the publication in June 2014 of a list of 80 agencies authorized to collaborate with the public employment services and to engage in the placement of the unemployed. The CCOO alleges that the Government submitted the framework agreement without previously informing or consulting the social partners. The CCOO adds that the State is required to guarantee the general objectives of the employment policy and expresses concern at the numbers who are turning to employment agencies and the quality of employment that is being found by them for the unemployed. The Committee invites the Government to provide the comments that it deems appropriate on the observations of the CCOO

[The Government is asked to reply in detail to the present comments in 2015.]

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The Committee notes the Government’s report received in September 2009, in which it is indicated that Act No. 43/2006 of 29 December to improve employment and growth has reinforced the conditions in which temporary employment agencies may not conclude labour supply contracts. The Government also provides details of the number of temporary work agencies and the different contracts used, and on the inspections undertaken in connection with private placement and selection agencies. The Government states that temporary employment agencies are a well established branch of economic activity in the services sector. The Committee would appreciate continuing to receive information on the exceptions authorized for temporary employment agencies and asks the Government to continue to send up to date information on any complaints, alleged abuses or fraudulent practices which may have been occasioned by the exceptions authorized under Article 7(2) of the Convention. Please also include in the next report statistics and data on the number of workers covered by the measures giving effect to the Convention (Part V of the report form).

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Authorization of exceptions to the rule that private employment agencies shall not charge workers for the services provided. With respect to its previous comments, the Committee notes the full information provided by the Government in its report received in July 2005 and requests the Government to continue providing information on the exceptions authorized for temporary work agencies, including practical information on any complaints, alleged abuses or fraudulent practices which may have been occasioned by the exceptions authorized under Article 7, paragraph 2, of the Convention. Please include, in the next report, statistics and data on the number of workers covered by the measures giving effect to the Convention (Part V of the report form).

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1. Authorization of exceptions to the rule that private employment agencies shall not charge workers for the services provided (Article 7 of the Convention). In reply to its 2002 direct request, the Government indicates that it understands that the legislative provisions examined by the Committee are in accordance with Article 7, paragraph 2, of the Convention. The Government adds that the offering or presentation to employers of the workers requested - provided that they fit the occupational profile of the vacancies existing in the enterprises - would justify the payment for the services provided by private employment agencies. The Government further notes that the most representative organizations of employers and trade union associations have been informed and consulted in this respect and it also refers to the opinion of the Economic and Social Council in relation to Royal Decree No. 735/1995.

The Committee notes that the Government has authorized exceptions under the terms of Article 7, paragraph 2, of the Convention, in accordance with which the authorization of exceptions to the provisions of paragraph 1 is subject to them being "in the interest of the workers concerned" and that they have to be in respect of "certain categories of workers, as well as specified types of services provided by private employment agencies". The Committee therefore, in accordance with paragraph 3, requests the Government to continue providing information on the exceptions authorized for temporary work agencies, including practical information on any complaints, alleged abuses or fraudulent practices which may have been occasioned by such exceptions. Please also include statistics and data on the number of workers affected by these exceptions.

2. Protection of migrant workers (Article 8, paragraph 1). The Committee notes the legislative amendments referred to by the Government in its report with a view to continuing to improve the legislative provisions designed to combat labour discrimination. The Government adds that the equal treatment of migrant workers is guaranteed in national law. In view of the need to ensure that migrant workers enjoy adequate protection and are not the subject of abuse, the Committee requests the Government to indicate the measures that have been adopted to prevent fraudulent practices or abuses by private employment agencies in relation to such workers. The Government may consider it useful to refer to the Conclusions on a fair deal for migrant workers in a global economy, adopted by the International Labour Conference at its 92nd Session (2004).

[The Government is asked to reply in detail to these comments in 2006.]

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The Committee takes note of the Government’s first report on the application of the Convention. The Committee would be grateful if the Government in its next report would include information on the following matters.

Article 7 of the Convention. The Government in its report refers to the provisions of section 12, paragraph 4, of Act No. 14/1994 with respect to temporary employment agencies, according to which any clause in a contract of employment is invalidated if it requires the worker to pay the agency any sum in connection with selection, training or recruitment. The Committee recalls that section 2 of Royal Decree No. 735 of 5 May 1995, which regulates the activities of non-profit-making employment agencies and the integrated employment services, provides that "any remuneration received (by the agencies) from the employer or the worker shall be strictly limited to the costs incurred as a result of the services provided". The agency’s income and expenditure budget must specify "the fees to be paid by the employer or workers for each service provided" (section 11(f) of Royal Decree No. 735).

The Committee notes that authorization for exemptions from the provision of paragraph 1 of the Convention - according to which private employment agencies must not charge workers any form of fee or payment, either directly or indirectly - is subject to the condition that the exemption be "in the interests of the workers concerned" and apply only to "specified categories of workers and certain clearly defined services provided by the private employment agencies in question" (paragraph 2). Paragraph 3 of the Convention requires that reports on the application of the Convention include information on these exemptions and the reasons for them. The Committee would therefore be grateful if the Government in its next report would indicate the categories of persons and the types of services for which workers may be required by agencies to pay fees, and which organizations of employers and workers have been consulted on this matter.

Article 8, paragraph 1. The Government in its report states that there is no special provision regarding the recruitment of migrant workers by temporary employment agencies, and the general provisions governing the employment of migrant workers are therefore applicable. The Committee would be grateful if the Government in its next report would indicate what measures have been taken to ensure that migrant workers recruited or placed in employment by private employment agencies enjoy adequate protection and are not subjected to abuses.