Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Private Employment Agencies Convention, 1997 (No. 181) - Serbia (Ratification: 2013)

Articles 1(1)(b) and 3 of the Convention. Legal status and conditions governing the operation of agencies employing workers with a view to making them available to third parties. The Committee notes the Government’s first report on the application of the Convention received in October 2015. The Government indicates that, notwithstanding the provisions of section 174, the Labour Law does not govern employment for the purpose of transfer of workers to user enterprises and does not recognize temporary work through employment agencies as a form of work engagement. The Government states however that, although not regulated, private employment agencies offering services consisting of employing workers with a view to making them available to a third party do exist in practice. It adds that the only form of work engagement for the purpose of assignment to other employers found in national legislation is the employment for temporary jobs through youth and student cooperatives. The Committee further notes that, based on section 4(1) of the Law on companies, any company registered in accordance with the Law on the registration of business entities can offer temporary work services within the meaning of Article 1(1)(b) of the Convention. In its 2010 General Survey concerning employment instruments, paragraph 240, the Committee indicates that the conditions governing the operation of private employment 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 further notes that a tripartite workshop was organized by DWT/CO–Budapest in August 2016 to support the drafting of a law covering the activities of all private employment agencies that would be submitted to Parliament in the beginning of 2017. The Committee requests the Government to provide information on the legislative measures taken or envisaged to regulate the activities of private employment agencies and other entities, such as youth and student cooperatives, which offer services consisting of employing workers with a view to making them available to a third party. It also requests the Government to provide information on the legal status of private employment agencies and the conditions governing their operation, including whether the most representative organizations of employers and workers have been consulted in this regard.

Article 4. Right to freedom of association and right to collective bargaining. The Government indicates that the right to freedom of association and the right to collective bargaining are covered by existing regulations in the field of labour relations and will also be regulated by the new Labour Law which was adopted by June 2016. The Committee requests the Government to provide further information on how the right to freedom of association and the right to bargain collectively are ensured to all workers covered by the Convention, specifically as regards workers employed by private employment agencies and made available to user enterprises.

Article 6. Personal data of workers. The Committee notes that the report does not contain information on whether the Regulation on the content of data and manner of keeping records in the field of employment covers all private employment agencies, including temporary work agencies. The Committee requests the Government to provide further information on how all private employment agencies, including temporary work agencies, are covered by national law on the processing of personal data of workers and how it is ensured that the data collected is limited to matters directly relevant to an employment decision.

Article 7. Fees and costs. The Government indicates that the legislation is based on the principle that fees should not be charged for providing employment services to unemployed persons. The Committee notes in this regard that section 5(6) of the Law on employment and unemployment insurance provides that the provision of services to unemployed persons is free of charge. The Committee requests the Government to provide further information on whether this principle applies to both fees and costs and to unemployed persons, jobseekers and workers.

Article 8. Protection of migrant workers. The Government indicates that an employment agency must report to the National Employment Service (NES) within five days of Serbian citizens’ departure for work abroad. Moreover, in its report on the application of the Employment Policy Convention, 1964 (No. 122), the Government refers to amendments to the Law on employment and unemployment insurance, applicable as from May 2015, which increase private employment agencies’ duties and responsibilities in terms of their accountability to the individuals mediated for employment abroad. The Committee requests the Government to provide detailed information on the measures taken to provide adequate protection for and prevent abuses of migrant workers recruited or placed in its territory by all private employment agencies, including on penal provisions and information on which employers’ and workers’ organizations were consulted. It also requests the Government to communicate a copy of the amended Law on employment and unemployment insurance.

Article 10. Adequate machinery and procedures for the investigation of complaints, alleged abuses and fraudulent practices. The Government refers to the provisions regulating the supervision of private employment agencies found in the Law on employment and unemployment insurance; provisions that include the revocation of a licence of a private employment agency under certain conditions. The Committee requests the Government to provide further information on the mechanisms and procedures for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies.

Articles 11 and 12. Measures to ensure adequate protection for workers. Allocation of responsibilities of private employment agencies and of user enterprises. The Committee notes the detailed information provided by the Government on the results of labour inspection in relation to matters covered by Article 11. The Government indicates that, due to the lack of legal regulation in this area, there is confusion concerning the allocation of responsibilities between private employment agencies and other employers in the implementation of safety and health regulations at work that makes it difficult for workers to exercise their rights, particularly when they suffer injuries at work. The Government further states that the alignment of legislation is in process. The Committee requests the Government to provide information on the legislative measures taken to ensure adequate protection for workers employed by private employment agencies, including temporary work agencies, for all areas referred to in Article 11. In respect of Article 12, it also requests the Government to indicate the measures taken or envisaged to ensure the determination and allocation of responsibilities between private employment agencies, including temporary work agencies, and user enterprises.

Article 13. Cooperation between the public employment service and private employment agencies. The Government indicates that section 27 of the Law on employment and unemployment insurance provides that the NES may engage private employment agencies for the performance of certain employment tasks. The Committee notes that, according to section 24 of the Law on employment and unemployment insurance, income collected from licence fees for private employment agencies is to be used to finance active employment policies. The Committee requests the Government to provide further information on how the conditions to promote cooperation between the NES and private employment agencies are formulated, established and periodically reviewed, in consultation with employers’ and workers’ organizations. The Government is also asked to specify the information that is made publicly available by the NES and the intervals at which this is done.

Article 14. Supervision and remedies. Application of the Convention in practice. The Government indicates that inspections covered 71 employment agencies which have a total of 5,782 workers. The Committee notes that out of the 71 employment agencies inspected, 28 agencies performed activities of employing workers and making them available to other employers. The Committee requests the Government to give a general appreciation of the manner in which the Convention is applied in practice and 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.

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