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

Convention (n° 181) sur les agences d'emploi privées, 1997 - Serbie (Ratification: 2013)

The Committee notes the Government’s report received on 14 November 2017. It further notes the observations of the Serbian Association of Employers (SAE) received on 31 August 2017 as well as the observations of the Trade Union Confederation “Nezavisnost” received together with the Government’s report. The Government is requested to provide its comments in this respect.

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. In response to the Committee’s previous comments regarding the legal status and conditions governing the operation of private employment agencies (PEAs) that hire workers for purposes of making workers available to a third party (a “triangular employment relationship”), the Government indicates that employment activities are carried out by the National Employment Service (NES) and PEAs holding a valid operating permit, issued by the ministry in charge of employment-related activities. Referring to section 20 of the Law on Employment and Unemployment Insurance, as amended (“the Law”), the Government once again indicates that PEAs may be established by natural or legal persons, for purposes of carrying out employment activities, specifically: dissemination of information on employment opportunities and conditions, job matching in the country and abroad, professional orientation and career consulting, as well as implementation of active employment policy measures subject to a contract with the NES. The Committee notes the Government’s indication that the Law does not provide for matters concerning the activities of PEAs or other entities, like youth and student collectives, which employ workers for purposes of making them available to a third party. In this regard, the Committee recalls the indication in the Government’s first report that, while the legislation does not provide for this type of employment, it does occur in practice. In its observations, the SAE maintains that no regulations have been adopted to implement the provisions of the Convention and that, therefore, relations between PEAs, user enterprises and workers are regulated predominantly at the will of the parties. The SAE observes that the Government formed a working group to address issues concerning PEAs, which includes the social partners, certain large PEAs dealing in triangular employment relationships who hold a monopoly in the country, as well as the Serbian Chamber of Commerce. In its observations, Nezavisnost indicates that no legislation has yet been developed to regulate temporary employment or the operation of PEAs providing workers to user enterprises. Moreover, while the Government indicates that there have been public discussions and the social partners have been involved in developing regulations, Nezavisnost states that, while a working group was formed to address issues concerning PEAs, no legislation regulating PEAs has yet been adopted nor has any public debate been organized on the issue of PEAs, particularly temporary work agencies. The Committee notes Nezavisnost’s statement that the Regulation on Classification of Economic Activities constitutes the only legal framework relevant to temporary employment and for making workers available to third entities. The Committee reiterates its request that the Government provide information on the legislative measures taken or envisaged to regulate the activities of PEAs 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 outcome of the consultations with the social partners in the context of the newly-formed working group on the issue of PEAs.

Article 4. Right to freedom of association and right to collective bargaining. The Committee notes that the Government provides no information in reply to its previous comments on this point. In its observations, Nezavisnost indicates that the national legal framework does not guarantee the right to either freedom of association or collective bargaining for workers employed by PEAs for purposes of making them available to user enterprises. The Committee therefore reiterates its request that the Government provide information on the manner in which the fundamental rights of freedom of association and collective bargaining are extended to all workers covered by the Convention, including workers employed by PEAs and made available to user enterprises.

Article 6. Personal data of workers. The Committee notes that the Government does not provide a response to its previous comments concerning whether the Regulation on the content of data and manner of keeping records in the field of employment covers all PEAs, including temporary work agencies. The Committee reiterates its request that the Government clarify the manner in which all PEAs, including temporary work agencies, are covered by national legislation on the processing of personal data of workers. It also once again requests the Government to provide further information on the manner in which it is ensured that data collected by all PEAs, including temporary work agencies, is limited to matters directly relevant to an employment decision.

Article 7. Fees and costs. The Government once again indicates that section 5(6) of the Law incorporates the principle that fees should not be charged for providing employment services to unemployed persons. Responding to the Committee’s previous comments concerning the application of the gratuity principle to workers and jobseekers, the Government adds that a PEA may charge for providing employment services if the user is a worker or jobseeker. The Committee requests the Government to indicate the nature and scope as well as the reasons for the exception of workers and jobseekers from the application of the principle of free employment services. In addition, the Committee requests the Government to provide information on consultations held with the most representative organizations of employers and workers regarding this exception. It also reiterates its request that the Government clarify whether the principle of free employment services applies both to fees and costs, as contemplated in Article 7(1) of the Convention.

Article 8. Protection of migrant workers. The Government indicates that, pursuant to the Law on the Employment of Foreigners (LEF), proof of compliance with the conditions for the employment of foreign workers must be kept on the premises of the business where the foreign worker is employed. The Committee notes that the LEF also provides that the employer who requested the issuance of the foreign worker’s operating permit cannot direct the foreigner to another employer. The Government indicates that this means that the foreign worker may only establish an employment relationship with the employment agency, which is the foreign worker’s sole employer. The Committee reiterates its request that the Government provide detailed information on the measures taken to provide adequate protection for and prevent fraudulent practices and abuses of migrant workers recruited or placed in its territory by PEAs. In addition, with respect to individuals mediated for work abroad, the Committee requests that the Government provide information on measures taken to provide adequate protection for such workers.

Articles 10 and 14. Adequate machinery and procedures for the investigation of complaints, alleged abuses and fraudulent practices. Supervision and remedies. The Government refers once again to the provisions of the Law pursuant to which the ministry in charge of employment activities is charged with supervising the activities of PEAs in terms of compliance with conditions for issuance of operating permits and monitoring their employment-related activities. The Committee notes that the Law contains provisions authorizing the revocation of the operating permit of a PEA under certain conditions. The Government indicates that, between 2016 and June 2017, the activities of PEAs in the country were continually monitored. In 2017, one PEA operating permit was revoked, and three PEAs were prohibited from carrying out employment-related activities. In addition, during the same period, ten formal requests were submitted to the Labour Inspection authorities seeking to prevent employment–related activities in violation of the Law. The Committee requests the Government to provide further information on the mechanisms and procedures for the investigation of complaints concerning the activities of PEAs as well as statistics, disaggregated by sex, age and economic sector, with respect to the complaints received. Noting that the information on the report of the Labour Inspectorate constitute a repetition of the information provided in the Government’s previous report, the Committee requests updated information in this respect. The Committee also requests the Government to provide further information on the remedies available in the event of violations of provisions of the Convention by PEAs, including temporary work agencies.

Articles 11 and 12. Measures to ensure adequate protection for workers. Allocation of responsibilities between PEAs and user enterprises. The Committee notes that, where a worker is employed in the country, the employer is obliged to secure full application of national regulations related to occupational health and safety. Where workers are mediated for work abroad, the employment agency bears responsibility during the job-matching procedure for employment, and with respect to the regularity of the employment, the working conditions and the provision of at least equal treatment in employment, compared with nationals of the country concerned. Nezavisnost expresses concern regarding problems related to the protection of workers referred to user companies in particular, regarding compliance with occupational safety and health and equal pay for equal work provisions, due to the absence of an adequate legislative framework. In respect of triangular employment relationships, Nezavisnost alleges that temporary work agencies are not held accountable in relation to the workers they hire for purposes of making them available to user enterprises. The Committee requests the Government to provide detailed information, including statistical data disaggregated by sex, on the impact of the measures taken to ensure adequate protection for workers employed by PEAs and user enterprises, as required by Articles 11 and 12.

Article 13. Cooperation between the public employment service and PEAs. The Government indicates that the Law stipulates that employment agencies may, on the basis of the agreement with the NES, undertake certain active employment policy measures. The Committee notes that the NES, on the basis of the NES Performance Agreement for the reference year, and through the reports on its implementation, shall report on the activities aimed at enhancement of cooperation with the employment agencies and development of a unique portal for announcement of vacancies in the labour market. The Committee also notes that the NES organized a Technical Assistance and Information Exchange (TAIEX) workshop on “Development of cooperation between the NES and employment agencies”, held on 1 June 2016, and attended by five representatives of PEAs, 67 NES employees and three representatives from the ministry in charge of employment-related activities. The Committee requests the Government to continue to provide information on the manner in which efficient cooperation between the NES and PEAs is promoted, and how conditions for such cooperation are defined, established and periodically reviewed. It also requests the Government to provide extracts of the reports submitted by PEAs to the NES and to specify the information that is made publicly available.