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

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

Articles 1(1)(b) and 2(1) and (4), of the Convention. Temporary work agencies. Prohibitions and exclusions. The Committee notes the Government’s first report indicating that all private employment agencies (PEAs) are required to comply with National Standard MNS 6620:2016. While national and international actors offer services to foreign companies by serving as the employer of record and supplying local employment contracts for staff hired by these actors, ensuring that local statutory requirements are met in relation to matters such as termination, probation periods, leave entitlements and statutory benefits, the Committee notes that the Employment Promotion Law does not address situations in which PEAs employ workers (“temporary work agencies”) with a view to making them available to a third party, that is, a “user enterprise”. Furthermore, it is unclear whether the Mongolian National Union for Agricultural Cooperatives, which sends agricultural labour abroad, is acting as an employment agency in the sense of Article 1(1)(b). The Committee requests the Government to provide updated detailed information indicating whether and to what extent PEAs are authorized to offer services consisting of employing workers with a view to making them available to a user enterprise, as contemplated under Article 1(1)(b), of the Convention, and to indicate the relevant legal provisions in this regard. It also asks the Government to indicate whether recourse has been made to Article 2(4), with respect to temporary work agencies and, if so, to provide information on consultations with employers’ and workers’ organizations regarding the manner in which adequate protection is assured for the workers concerned. The Committee further requests the Government to keep the Office informed of the adoption or amendment of labour legislation relevant to the application of the Convention and to provide copies of laws or regulations giving effect to the provisions of the Convention, including National Standard MNS 6620:2016 and the Law on Legal Status of Government Agencies.

Articles 1(1)(c) and 5(2). Other services offered by private employment agencies. Targeted programmes. The Committee notes that, pursuant to section 10.2 of the Employment Promotion Law, PEAs and non-governmental organizations may provide services providing preparation for employment, support and assistance on a contractual basis. The Government reports that, on the basis of National Standard MNS 6620:2016, six employment promotion programmes have been approved to date by the tripartite National Employment Council. The programmes seek to place unemployed individuals and those with disabilities in permanent as well as temporary jobs, coordinate and deliver training activities. The programmes are to be implemented by PEAs and include training and capacity building for employment, workplace promotion, youth employment support and start-up promotion, herders’ employment promotion as well as promotion of employment for persons with disabilities. The Committee requests the Government to provide updated detailed information on the type and number of PEAs participating in the six employment promotion programmes established under National Standard MNS 6620:2016. It further requests the Government to provide information on the employment-related activities carried out in the framework of each of the six programmes and on their impact, including statistical information disaggregated by age and sex (Article 1(1)(c)). In addition, it requests the Government to provide information on the nature and extent of special services or targeted programmes implemented by PEAs to assist disadvantaged workers in accessing employment opportunities (Article 5(2).

Article 3. Legal status and conditions of operation. The Government indicates that, based on National Standard MNS 6620:2016, PEAs must obtain a “special permit” from the General Agency for Labor and Social Services authorizing them to conduct employment service activities. This special permit enables PEAs to receive State funding in exchange for delivering employment services to the public. The Committee further notes that the nature of the “mediation permit” issued under section 6.1 of the Law on Sending Labour Force Abroad and Receiving Labour Force and Specialists from Abroad, is not specified. Moreover, the Government has provided no information regarding the regulation of temporary work agencies operating solely at the national level. The Committee therefore requests the Government to provide information on the legal status of all PEAs operating in the country, including temporary work agencies and agricultural cooperatives sending labour abroad, as well as on the conditions governing their operations. The Committee further requests the Government to provide additional information on the nature of the special permit to be issued under the National Standard MNS 6620:2016 as well as on the nature of the mediation permit provided for under section 6.1 of the Law on Sending Labour Force Abroad and Receiving Labour Force and Specialists from Abroad. It also requests the Government to provide information on consultations held with the most representative organizations of employers and workers regarding the determination of the legal status of such agencies.

Article 4. Freedom of association and collective bargaining. The Committee notes that the Government has not provided information on whether and to what extent Labour Code provisions regarding the applicability of collective agreements and trade union rights apply to workers made available to user enterprises in the sense of Article 1(1)(b). The Committee requests the Government to provide information on the measures taken to ensure that workers made available to user enterprises benefit from existing collective agreements entered into by the user enterprise in a manner similar to its employees. The Committee further requests the Government to communicate information indicating the manner in which it is ensured that workers recruited by temporary work agencies are afforded the right to freedom of association and collective bargaining.

Article 5. Equality of opportunity and treatment. The Committee recalls its 2017 comments with regard to Mongolia’s implementation of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), noting that gender-based discrimination remained prevalent in practice, despite the adoption in 2008, almost a decade before, of amendments to the Mongolian Labour Code aimed at preventing the exclusion of women from a wide range of occupations. The Committee requests the Government to indicate the measures taken or envisaged to ensure that all PEAs treat workers without discrimination and respect equality of opportunity and treatment in access to employment as well as to specific occupations. In particular, the Committee invites the Government to provide information on measures taken or envisaged to ensure that all PEAs respect the principle of gender equality in employment and occupation.

Article 6. Processing of workers’ personal data. The Committee notes the information provided by the Government concerning the processing of jobseekers’ personal data, which is conducted based on template for registering an individual’s information into an integrated employment database. The Committee requests the Government to provide specific information on the manner in which workers’ personal data is protected as required under Article 6.

Article 7. Fee-charging. The Government indicates that, under section 6.5 of the Employment Promotion Law, employment promotion services shall be delivered free of charge. It adds that no special treatment or exceptions have been made in this respect. The Committee notes that section 9.4 of the Employment Promotion Law, which refers to Mongolian “citizens”, could be interpreted as permitting PEAs to charge fees to non-Mongolian jobseekers. The Committee therefore requests the Government to provide detailed information on the measures taken or envisaged to ensure that PEAs, including temporary work agencies, do not charge either national or non-national workers directly or indirectly for their services. It also requests the Government to provide information on the mechanisms and procedures in place to enforce prohibitions against fee-charging.

Article 8. Migrant workers. The Government reports that the Ministry of Labour and Social Welfare is working on a reform of the Law on Sending Labour Force abroad and Receiving Foreign Expert and Labour Force, with a view to strengthening rights and protection for migrant workers, both Mongolian citizens working abroad and foreign workers employed in Mongolia. The Committee notes that, in 2008, some 20 PEAs were authorized to export labour abroad. The Committee also notes that since 2003, the Mongolian National Union for Agricultural Cooperatives has been sending agricultural labour abroad, mainly to the Republic of Korea, the Czech Republic, Hungary and Japan. It also notes that as of 2008, Mongolia had concluded bilateral agreements with the Republic of Korea (2004), Chinese Taipei (2001), the Czech Republic (1999) and Japan (1998). The Committee requests the Government to provide information regarding all bilateral agreements it has concluded which address the prevention of abuses and fraudulent practices in the recruitment, placement and employment of migrant workers and to provide copies of these agreements.

Article 9. Measures ensuring that child labour is not used or supplied. The Committee refers to its previous comments in regard to the implementation of the Minimum Age Convention, 1973 (No. 138), and the Worst Forms of Child Labour Convention, 1999 (No. 182), particularly in regard to the international trafficking and forced commercial exploitation of girls. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that child labour is neither recruited nor supplied by PEAs, including temporary work agencies.

Article 10. Adequate complaint machineries and procedures. The Government indicates that, in addition to the monitoring of compliance in the areas of labour law and social protection by the Department of Monitoring, Evaluation and Internal Audit of the Ministry of Labour and Social Protection, a working group consisting, inter alia, of representatives of the Ministry and private organizations was established to inspect, evaluate and audit PEAs. The Committee requests the Government to provide detailed information on the structure and operation of the mechanisms and procedures for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of PEAs, including temporary work agencies.

Articles 11 and 12. Ensuring adequate protection for workers. Allocation of responsibilities between PEAs and user enterprises. The Government’s report refers to the general responsibilities of employers set out in section 6.1 of the Labour Code. The Committee notes that section 6.1 does not address the protection of employees employed by temporary work agencies, as it does it take into account the special characteristics of “triangular” employment relationships. The Committee requests the Government to provide information on the measures taken to ensure protection for workers in the areas set out under clauses (a) through (j) of Article 11, including detailed information on the impact of such measures in practice. It also asks the Government to provide information on the manner in which responsibilities are allocated between PEAs and user enterprises in all areas set out in Article 12, and to provide updated detailed information on developments in relation to amendments of the existing legislative framework.

Article 13. Effective cooperation between the public employment service and PEAs. The Committee notes that section 9.2 of the Employment Promotion Law provides for PEAs to be linked to the integrated employment database based on the conclusions of the Central Job Placement Office. Section 30.1.3 of the Employment Promotion Law permits the State Central Administrative Organization in Charge of Labour Matters to obtain from non-governmental organizations and business entities information, analyses and estimates concerning the labour market. Thus, the Committee requests the Government to communicate detailed information on the manner in which the conditions to promote cooperation between the State Central Administrative Organization in Charge of Labour Matters and PEAs are formulated, established and reviewed, as well as information on consultations with employers’ and workers’ organizations in this regard. In addition, it requests the Government to provide examples of the information that PEAs – including temporary work agencies – provide to the State Central Administrative Organization in Charge of Labour Matters.

Article 14. Inspections. The Committee requests the Government to provide updated detailed information on how the supervision of the implementation of provisions to give effect to this Convention is ensured by the labour inspection service or other competent public authorities. It also requests the Government to provide examples of the remedies foreseen for cases of violations of the Convention 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.

Application of the Convention. The Committee requests the Government to provide a general appreciation of the manner in which the Convention is applied in Mongolia, including extracts from inspection reports and, where such statistics exist, information on the number of workers covered by the measures giving effect to the Convention, and the number and nature of infringements reported (Part V of the report form). As no information has been provided, the Committee finally asks the Government to indicate the representative organizations of employers and workers to which copies of the present report have been communicated (Part VI of the report form).