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

Convention (n° 181) sur les agences d'emploi privées, 1997 - Albanie (Ratification: 1999)

Articles 1, 3 and 5, of the Convention. Definitions. Legal status. Non-discrimination. The Committee notes the Government’s indication that, to meet the requirements of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, as well as to give effect to the Convention, the 1995 Labour Code was amended by Law No. 136/2015 of 5 December 2015, (hereinafter the 2015 Labour Code). The amendments introduce provisions regulating domestic and cross-border activities of private employment agencies (PEAs) in the sense of Article 1(1)(b) of the Convention (temporary work agencies). In addition, the amendments update the provisions in the Labour Code on non-discrimination to include additional prohibited grounds of discrimination (section 9 of the 2015 Labour Code), as well as requirements for a written employment contract (section 18/5(2)(c) of the 2015 Labour Code). In this regard, the Committee notes with interest that, according to section 18/3(3)(a) of the 2015 Labour Code, agreements between the user enterprise and the temporary work agency (TWA) will be deemed to be invalid if they prohibit the conclusion of a direct employment contract between an employee and the user enterprise following the termination of the employment contract between the employee and the TWA. In addition, according to section 18/2(1)(e) of the 2015 Labour Code, the user enterprise is required to provide TWA workers about vacancies that arise, and to provide such workers with equal opportunities to access direct employment with the enterprise. The Committee also notes the Government’s indication that private employment mediation requires a Category X.2.A licence authorizing the PEA to engage in “Mediation in the Labour Market”, as stipulated in Law No. 10081 of 23 February 2009, entitled “On Licences, Authorizations and Permits in the Republic of Albania” and Decision No. 538 of 26 May 2009 of the Council of Ministers, entitled “On Licences and Permits Handled by or through the National Business Centre and Some Other Common Sub-Legal Rules”. The Government also refers to the Council of Ministers’ 2017 draft decisions entitled: “On the Establishment and Manner of Organization and Functioning of the Temporary Employment Agency” and “On the Establishment and Manner of Organization of the Private Employment Agencies” (the 2017 draft decisions). The Government indicates that these 2017 draft decisions, on which the social partners were consulted, seek to improve the legal framework for the functioning of PEAs, with the aim of preventing irregular migration and abusive conditions of employment. It adds that the 2017 draft decisions are still under consideration by the relevant ministries. The Committee requests the Government to indicate whether the licence requirement established under Law No. 10081 of 23 February 2009 and Decision No. 538 of 26 May 2009 is applicable to all types of PEAs, including TWAs (Article 3). Furthermore, it requests the Government to provide copies of Decision No. 538 to the Office, as well as copies of the 2017 draft decisions once they are adopted. The Committee further requests the Government to indicate the manner in which effect is given to the non-discrimination provisions of the 2015 Labour Code in practice (Article 5).

Article 2(4)(a). Prohibitions. The Committee notes that, according to section 18/1(5) of the 2015 Labour Code, the use of temporary agency work in certain cases, sectors or categories of employees is prohibited if matters of general interest are affected – in particular: health and safety conditions at work, the proper functioning of the labour market or the prevention of abuses. Whether or not to prohibit the use of TWAs in this context is a decision to be made by the Council of Ministers. The Committee requests the Government to provide further information on the circumstances in which the use of TWAs may be prohibited and on the manner in which this prohibition has been implemented in practice. It further requests the Government to provide information on consultations held with employers’ and workers’ organizations prior to the adoption of this prohibition.

Article 7. Fees and costs. The Government indicates that PEAs are not permitted to charge any direct or indirect fees for providing their services, except for necessary expenses incurred in terms of administrative fees. The Committee notes that, in respect of TWAs, pursuant to section 18/3(3)(b) of the 2015 Labour Code, an employment agreement will be deemed invalid if it “provides for the obligation of the employee to pay to the agency a fee for employment in the receiving enterprise or establishment of a legal relationship with the receiving enterprise”. In addition, the Committee notes that section 18/2(1)(c) of the 2015 Labour Code provides that “unless otherwise agreed, the agency shall cover all employment-related expenses provided for in the legal provisions”. Referring to its 2007 comments, the Committee once again requests the Government to specify the nature of the administrative services for which TWAs may require workers to pay fees and to indicate the reasons for authorizing such expenses. In addition, the Committee requests the Government to indicate what control is exercised over the amount of fees that may be charged, and whether employers’ and workers’ organizations were consulted prior to authorizing an exception in this regard. It also requests the Government to provide information on whether the general prohibition against charging fees is applicable to all types of PEAs, including TWAs and those operating in a cross-border context.

Article 8. Migrant workers. The Committee welcomes the extracts provided by the Government from the agreement concluded with Qatar. It further notes the updated information on the Memorandum of Understanding signed with an international PEA, as well as information concerning the Triple Win Migration project with Germany, on the basis of which 20 nurses were recruited to work in Germany. The Government indicates that it has no information indicating the presence of fraudulent practices or abuses, adding that the Council of Ministers’ draft decision, “On the Establishment and Manner of Organization of the Private Employment Agencies”, establishes protections for workers mediated in a cross-border context. The Committee requests the Government to provide information on the manner in which it ensures adequate protection for and prevents abuses of migrant workers recruited or placed in its territory by all types of PEAs. It further requests the Government to continue to provide information on the nature and extent of penalties imposed against PEAs engaging in fraudulent practices or abuses involving migrant workers, as well as on the impact of the bilateral agreements concluded.

Articles 10 and 14(3). Investigation of complaints. Adequate remedies. The Committee notes that during the period from April 2014 to June 2015, labour inspectors carried out inspections of two PEAs in response to inquiries made by jobseekers. The inspections concluded that both PEAs were operating in accordance with the applicable legal framework. The Committee requests the Government to provide a general appreciation of the manner in which the Convention is applied by, for example, including extracts from inspection reports and information on the number of workers covered by the measures giving effect to the Convention, the number of infringements reported, and examples of the remedies provided for and effectively applied in cases of violations of the principles of the Convention (Part V of the report form).

Articles 11 and 12. Adequate protection and allocation of responsibilities. The Committee notes that sections 18/1 to 18/5 of the 2015 Labour Code provide for the protection of workers employed by TWAs in regard to: (a) freedom of association; (b) collective bargaining; (c) minimum wages; (d) working time and other working conditions; (e) statutory social security benefits; (f) occupational safety and health; (g) compensation in case of occupational accidents or diseases; (h) maternity protection and benefits, and parental protection and benefits. Pursuant to section 18/2(1)(d)(i) to (iii) and (g) of the 2015 Labour Code, the user enterprise is responsible for the temporary agency worker’s health and safety at work, for ensuring equal treatment and for adhering to working times and rest requirements, as well as for providing compensation in case of occupational accidents or diseases. According to section 18/5(3) of the 2015 Labour Code, such workers are entitled to benefit from collective services and facilities in the user enterprise, including childcare facilities and transport services, equal to those enjoyed by the user enterprise’s employees, unless the difference in treatment is justified by objective reasons. The Committee requests the Government to indicate the manner in which adequate protections are ensured in respect of access to training, compensation in case of insolvency and protection of workers’ claims (Article 11(f) and (i) of the Convention). Furthermore, it asks the Government to clarify the meaning of the term “objective reasons justifying a difference in treatment” and to provide detailed information on the manner in which the allocation of responsibilities between TWAs and user enterprises is ensured in practice in relation to all the areas of responsibility set out in Article 12(a)–(i).