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

Convenio sobre las agencias de empleo privadas, 1997 (núm. 181) - Zambia (Ratificación : 2013)

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 Industrial and Labour Relations Act (No. 27) of 30 April 1993, Chapter 269 of the Laws of Zambia (as amended; ILRA), and the Employment Act (No. 57) of 1965, Chapter 268 of the Laws of Zambia (as amended).

Articles 1(1)(b) and 12 of the Convention. Employing workers with a view to making them available to user enterprises. Allocation of responsibilities. The Government indicates in its report that “user enterprises” are currently not recognized by Zambian labour laws. Employment agencies mediating employees are currently the only ones recognized. The Committee requests the Government to indicate if it envisages to permit employment agencies to employ workers with a view to making them available to a third party, that is, a “user enterprise” in the meaning of Article 1(1)(b) of the Convention.

Article 2(4) and (5). Prohibitions and exclusions. The Government indicates that no recourse has been made to the possibility to prohibit private employment agencies from operating in certain branches of economic activity or to exclude workers in certain branches of economic activity. The Committee notes, however, that section 3(a)–(c) of the Employment Act states that “recruitment” shall not include operations: (a) undertaken by or on behalf of employers who do not employ more than a limited number of employees; (b) for the engagement of personal and domestic servants and non-manual workers; and (c) undertaken within a limited radius from the place of employment. The Committee requests the Government to indicate whether private employment agencies are prohibited from operating in the areas listed under section 3(a)–(c) of the Employment Act.

Article 3. Governance of the operation of private employment agencies. The Government indicates that a license system for private employment agencies is in place. Moreover, according to section 56 of the Employment Act, employment agencies must acquire authorization from the Labour Commissioner before commencing their operations. The Committee requests the Government to provide practical information on the measures ensuring that only licensed private employment agencies are able to operate in the country.

Article 5(2). Special services or targeted programmes to assist the most disadvantaged workers. The Government reports that organizations employing persons with disabilities are given certain incentives, such as tax rebates. The Citizens Economic Empowerment Act (No. 9) of 19 May 2006 provides for an integrated broad-based and multi-faceted strategy, in possible partnership with private companies, and is aimed at substantially increasing meaningful participation of a targeted citizen, that is, a citizen who is or has been marginalized or disadvantaged. The Committee requests the Government to provide further information on whether private employment agencies provide 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 every employment agency is required by law to document all its transactions. These transactions are to be produced, when requested, during inspections. By practice, confidentiality is encouraged. The Government indicates that a Data Protection Bill is in its drafting stage which aims at governing the processing of personal information by private and public bodies and preventing unlawful use, collection, processing, transmission and storage of personal information of identifiable persons. The Committee requests the Government to specify the regulations currently in force and how they ensure that the processing of personal data of workers by private employment agencies is done in a manner that protects this data and ensures respect for worker’ privacy and is limited to matters related to the qualifications and professional experience of the workers concerned. Please also provide information on the content and the enactment of the Data Protection Bill and whether its provisions provide protection in line with the requirements of the Convention.

Article 7. Possibility of fee-charging to workers. The Government indicates that no exceptions are authorized to section 59 of the Employment Act concerning the prohibition of fee-charging to workers. The Committee notes, however, that the definition of “employment agency” in section 3 of the Employment Act provides that an agency may charge an entrance fee, a periodical contribution or any other charge, or derives, either directly or indirectly, any pecuniary or other material advantage from either the employer or the employee. The Committee requests the Government to clarify whether exceptions have been authorized for specified types of services provided by private employment agencies and, if so, which employers’ and workers’ organizations have been consulted in this regard.

Article 8(1). Protection of migrant workers. The Government states that labour laws that apply to national workers also apply to migrant workers. The Committee further notes that general provisions regarding the protection of migrants, including penal provisions for employers not complying with their obligations, are laid down in the Immigration and Deportation Act. The Committee requests the Government to provide further information on how adequate protection is ensured for migrant workers recruited or placed in its territory by private employment agencies, including penal provisions, and which employers’ and workers’ organizations have been consulted in this regard.

Article 10. Complaints. The Government states that investigations are usually done by the Labour Inspectors. The ILRA provides for general complaint procedures (section 108(2)). The Employment Act directs general complaints to the labour officer, explicitly encouraging the use of collective bargaining facilities (section 64(1)). The Committee requests additional information on the existing machinery and procedures, such as in the framework of labour inspections or otherwise, for the investigation of complaints concerning the activities of private employment agencies.

Article 11. Adequate protection for workers employed by private employment agencies. In its 2010 General Survey concerning employment instruments, the Committee highlighted the need to secure adequate protection in the areas enumerated in Article 11 of the Convention. The Committee requests the Government to provide information in the areas described in subparagraphs (c)–(j) of this provision.

Article 13. Cooperation between the public employment service and private employment agencies. The Committee recalls that Zambia has ratified the Employment Policy Convention, 1964 (No. 122), and that, under Convention No. 181, the public authorities retain final authority for formulating a labour market policy. It notes that private employment agencies provide information relating to vacancies notified and/or positions filled to the Ministry of Labour and Social Security (MLSS). The Committee requests the Government to provide an account of the measures taken to promote cooperation between the MLSS and private employment agencies. Please also supply examples of the information provided by private employment agencies and specify the information that is made publicly available and the intervals at which this is done.

Article 14 and application of the Convention in practice. The Committee requests the Government to provide examples of the remedies provided in cases of violations of the Convention. Please also provide a general appreciation of the manner in which the Convention is applied, by including, for example, 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.