Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

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

Articles 1(1)(c) and 12 of the Convention. Provision of other services related to jobseeking. In its previous comments, the Committee requested the Government to indicate whether private employment agencies (PEAs) are authorized to offer other services related to jobseeking within the meaning of Article 1(1)(c). The Government refers in its response to the broad definition of an “employment agency” or “employment business” set out in section 3(1) of the Employment Relations (Employment Agencies) Regulations of 2008 (the 2008 Employment Agencies Regulations), which includes “any activity carried out by a natural or legal person in Fiji for the enlisting, registration, recruitment or deployment of persons for employment in Fiji or outside Fiji but excludes any public employment exchanges or public authority”. The Government adds that this broad definition captures any activity for the purpose of jobseeking, but reasonably limits this to activities of this nature to ensure that private employment agencies do not take advantage of the system and the general public. The Committee acknowledges the Government’s reply, which responds to its previous request.

Article 5(2). Targeted programmes to assist disadvantaged workers. The Government reports that assistance to the most disadvantaged workers is primarily provided by the public National Employment Centre (NEC), which is under the Ministry of Employment. The NEC implements the National Employment Policy 2018–2022, which includes among its priorities the promotion of access to overseas employment, creating more income-generating opportunities for those reliant on subsistence activities for their livelihood, the promotion of greater gender equality in employment and enabling persons with disabilities and the elderly to earn an income. The Committee once again requests the Government to indicate whether and in what manner private employment agencies collaborate or participate in any of these measures relevant to implementation of the National Employment Policy 2018-2022, or in any other special services or targeted programmes designed to assist the most disadvantaged workers in securing employment (Article 5(2)).

Article 7. Fees and costs. The Committee notes the Government’s indication that pursuant to Schedule 4 of the 2008 Employment Agencies Regulations, an employment agency or employment business must not charge more than the fees outlined in the Schedule. The Committee once again notes that Schedule 4 displays fees for only the most basic services and enables agencies to charge for unspecified “additional services” (print-outs and database services). Moreover, of the four specific types of fees listed in Schedule 4, the two main services, namely securing jobseeker employment locally or overseas, do not disclose any amounts, stating only “a charge to be paid by the user”. The Government adds that, in addition to specific services, Schedule 4 provides that fees may be charged for unspecified “additional services”, indicating that such fees are capped at FJD 50 per hour of service. The Committee recalls that Article 7(1) contains a general prohibition on the charging of fees or other costs, directly or indirectly, in whole or in part, to jobseekers. Article 7(2) of the Convention provides for the possibility of permitting exceptions from the general prohibition in Article 7(1) of charging fees or other costs. However, the Committee draws the attention of the Government to its 2010 General Survey concerning employment instruments (2010 General Survey), paragraphs 333–334, in which it emphasized that exemptions from Article 7(1) may be authorized when they are “in the interest of the workers concerned” and made in relation to “certain categories of workers, as well as specified types of services provided by private employment agencies”. The Committee noted that use of this provision is subject to: (a) prior consultation of the most representative organizations of employers and workers; (b) transparency through the creation of an appropriate legal framework indicating the limitations on the exceptions made, as well as through disclosure of the fees and costs; as well as (c) providing to the Office through its article 22 reporting obligations information on and the reasons for making use of the exceptions. The Committee reiterates its request that the Government provide information on the reasons for authorizing the exceptions made to the prohibition against fee-charging. In addition, the Committee once again requests the Government to communicate information on the nature and outcome of consultations held with the most representative organizations of employers and workers concerning these exceptions, and on whether the exceptions are limited to certain categories of workers as well as to specified types of services provided by private employment agencies. The Government is also requested to provide information on the application of these exceptions in practice and on the manner in which it is ensured that jobseekers are aware of the amounts of the different types of fees and costs that private employment agencies may charge for both specific and unspecified “additional” services.

Articles 8, 10 and 14. Protection of migrant workers. Adequate machinery and procedures for the investigation of complaints, alleged abuses and fraudulent practices as well as supervision and remedies. With respect to the activities of PEAs in relation to mediating persons to work overseas, the Government indicates that PEAs are required to post a surety bond of 20,000 FJD with the Fijian Government for the purpose of assisting workers in the event that they fail to look after or repatriate Fijian workers mediated abroad. The Government reports that the Ministry of Employment has been working closely with the Fiji Police Force to investigate cases of bogus PEAs advertising to recruit local workers for deployment overseas. It adds that the Ministry has to date successfully prosecuted 3 bogus employment agencies operating illegally, and criminal sanctions were imposed. The Committee requests the Government to continue to provide updated information on the measures taken to prevent and sanction the operation of bogus employment agencies in the country. It also requests the Government to include in its next report reports of the inspection services, as well as updated information on the measures taken to eliminate fraudulent private employment agencies (Articles 10 and 14). It invites the Government to continue to provide information on the measures taken to provide adequate protection and prevent abuses of workers recruited in Fiji by private employment agencies for work abroad. Furthermore, the Government is also invited to provide information on any bilateral agreements concluded in this regard (Article 8(2)).

Articles 11 and 12. Measures to ensure adequate protection and allocation of responsibilities of private employment agencies and user enterprises. The Committee notes the Government’s general indication that the Ministry of Employment, under the Employment Relations Act and the 2008 Employment Agencies Regulations, ensures that Fijians are not exploited in respect to their terms and conditions of employment under their foreign contracts of service, to prevent trafficking and other unlawful forms of labour exploitation by individuals or operators. The Committee once again recalls paragraph 313 of its 2010 General Survey, in which it highlighted the need to have a clear legal framework in place to secure adequate protection and a clear allocation of responsibilities between PEAs and user enterprises in the areas enumerated in Articles 11 and 12 of the Convention, in both a domestic and cross-border context. The Committee therefore requests the Government to provide updated detailed information on all matters referred to in Article 11 of the Convention and on the manner in which responsibilities are allocated and effectively enforced between private employment agencies and the user enterprises in the areas described in Article 12.

Article 13. Cooperation between the public employment service and private employment agencies. Reporting and publication. In response to the Committee’s previous comments, the Government reports that the National Employment Centre Act 2009 requires the NEC to engage with reputable organizations in promoting employment growth and human resource development of unemployed persons registered with the NEC. It adds that from 2017 to 2020, a total of 518 memoranda of understanding were entered into between the private sector and government bodies resulting in 2,752 workplace attachments. The Committee notes that, in response to its previous comments, the Government reports that to date the Permanent Secretary for Employment has not made use of the possibility to pass sub-regulations under the 2008 Employment Agencies Regulations. The Government further indicates that the information and funds that PEAs must provide to the Ministry of Employment for authorization to operate as a PEA are published in the Fijian Government Gazette and local daily newspapers and must include, among other details, the schedule of fees to be charged. Noting that authorizations are valid for one year, the Committee invites the Government to indicate whether and how frequently the authorization information required is published upon renewal of authorization. The Committee also reiterates its request that the Government indicate whether the National Employment Centre cooperates with private employment agencies in research, dissemination and marketing of information, data and services.

Application of the Convention in practice. The Committee requests the Government to provide a general appreciation of the manner in which the Convention is applied, including information on the number of workers covered by the measures giving effect to the Convention. The Government is also requested to provide copies of decisions rendered by courts of law or other tribunals involving questions of principle relating to the application of the Convention (parts IV and V of the report form).