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86th Session
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Report V (2B)
Contract labour
Fifth item on the agenda
International Labour Office GenevaI
ISBN 92-2-010658-2
ISSN 0074-6681/0251-3218
CONTENTS
The first discussion of the question of contract labour took place at the 85th Session (1997) of the International Labour Conference. Following that discussion, and in accordance with article 39 of the Standing Orders of the Conference, the International Labour Office prepared and communicated to the governments of member States a report 1 containing a proposed Convention and a proposed Recommendation concerning contract labour, based on the conclusions adopted by the Conference at its 85th Session.
Governments were invited to send any amendments or comments they might wish to make so as to reach the Office by 30 November 1997 at the latest, or to inform it, by the same date, whether they considered that the proposed texts constituted a satisfactory basis for discussion by the Conference at its 86th Session (1998).
At the time of drawing up this report, the Office had received replies from the governments of the following 72 member States: 2 Argentina, Australia, Austria, Bahrain, Barbados, Belarus, Belgium, 3 Botswana, Brazil, Burundi, Canada, Cape Verde, Colombia, Comoros, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, El Salvador, Finland, France, Gambia, Germany, Greece, Hungary, India, Indonesia, Iraq, Italy, Japan, Jordan, Kenya, Lithuania, Malaysia, Mali, Malta, Mauritius, Mexico, Mozambique, Myanmar, Nepal, Netherlands, New Zealand, Norway, Pakistan, Poland, Portugal, Qatar, Romania, Saudi Arabia, Seychelles, Singapore, Slovakia, South Africa, Spain, Sweden, Switzerland, Syrian Arab Republic, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, United Arab Emirates, United Kingdom, United States, Uruguay, Zambia.
In accordance with article 39, paragraph 6, of the Standing Orders of the Conference, governments were requested to consult the most representative organizations of employers and workers before finalizing their replies and to indicate which organizations they had consulted.
The governments of the following 16 member States stated that their replies had been prepared in consultation with employers' and workers' organizations: Brazil, Canada, Cyprus, Czech Republic, Denmark, Finland, Hungary, Kenya, Mauritius, Norway, Seychelles, Singapore, Sweden, Switzerland, Trinidad and Tobago, Zambia.
In the case of 30 member States the replies of employers' and workers' organizations were incorporated into those of the government, were appended or were communicated directly to the Office: Australia, Austria, Belgium, Brazil, Canada, Chad, Colombia, Cyprus, Czech Republic, Denmark, France, Germany, Hungary, India, Italy, Japan, Jordan, Republic of Korea, Malaysia, Mauritius, Netherlands, New Zealand, Norway, Portugal, South Africa, Switzerland, Turkey, United Kingdom, United States, Uruguay.
The observations of member States contained in Report V (2A) have revealed that a number of important issues of a substantive nature such as, inter alia, the definition of "contract labour", the scope of the proposed instruments and the terminology to be used are understood and interpreted differently by the ILO constituents. The suggestions made by the Office in Report V (1) to introduce changes in the text of the proposed instruments did not receive sufficient support to allow it to modify the text. Under these circumstances and in order not to delay the despatch of this Report, in accordance with article 39, paragraph 7, of the Standing Orders of the Conference, which requires that a final report containing the text of the proposed instruments should be prepared "on the basis of the replies received", the text below has undergone minimal changes of a drafting nature.
The diversity of the observations made, the questions raised by member States concerning some of the fundamental concepts, the complexity of the issues involved and the requests made to the Office for clarification of some of these issues, including the statement made during the plenary session of the Conference in 1997 on behalf of Canada, Japan, Switzerland and the United States, would, however, appear to require further consideration by the Office of the issues which the time available did not permit. The Office will endeavour to explore ways to address these various concerns and try to clarify the various types of situations covered by the definition of "contract labour" and to identify more clearly provisions in the text of the proposed instruments which are relevant to each of these particular situations. In this regard, the Office envisages submitting a working document in advance of the Conference for possible use by the constituents.
In order to ensure that the English and French texts of the proposed Convention and Recommendation concerning contract labour are in the hands of the governments within the time-limit laid down in article 39, paragraph 7, of the Standing Orders of the Conference, Report V (2) is published in two volumes.4 Report V (2B) contains the English and French versions of the proposed texts, amended in the light of the observations made by governments and by employers' and workers' organizations and for the reasons set out in the Office commentaries. In addition, some minor changes were made, where appropriate, in the wording of the texts, mainly to ensure full convergence between the two versions of the proposed instruments. If the Conference so decides, these texts will serve as a basis for the second discussion, at the 86th Session (1998), of the question of contract labour.
The following are the English versions of (A) the proposed Convention concerning contract labour, and (B) the proposed Recommendation concerning contract labour, which are submitted as a basis for discussion of the fifth item on the agenda of the 86th Session of the Conference.
A. Proposed Convention concerning contract labour
The General Conference of the International Labour Organization,
Having been convened at Geneva by the Governing Body of the International Labour Office, and having met in its Eighty-sixth Session on 2 June 1998,
Having regard to the growing recourse to contract labour, and recognizing that it is appropriate to adopt new standards on the subject with a view to ensuring that contract workers enjoy adequate protection,
Having decided upon the adoption of certain proposals with regard to contract labour, which is the fifth item on the agenda of the session, and
Having determined that these proposals shall take the form of an international Convention;
adopts this day of June of the year one thousand nine hundred and ninety-eight the following Convention, which may be cited as the Contract Labour Convention, 1998:
Article 1
For the purposes of this Convention:
- the term "contract labour" means work performed for a natural or legal person (referred to as a "user enterprise") by a person (referred to as a "contract worker") where the work is performed by the contract worker personally under actual conditions of dependency on or subordination to the user enterprise and these conditions are similar to those that characterize an employment relationship under national law and practice and where either:
- ithe work is performed pursuant to a direct contractual arrangement other than a contract of employment between the contract worker and the user enterprise; or
- the contract worker is provided for the user enterprise by a subcontractor or an intermediary;
- the term "subcontractor" means a natural or legal person who undertakes by a contractual arrangement with a user enterprise to have work performed for that enterprise;
- the term "intermediary" means a natural or legal person who makes contract workers available to a user enterprise without becoming formally the employer of these workers.
Article 2
1. The Convention shall apply to all branches of economic activity and to all contract workers. It shall not apply to workers who, in accordance with national law and practice, have a recognized contract of employment with the user enterprise. It shall not apply to employees of private employment agencies who are made available to a user enterprise to perform contract labour.
2. The competent authority, after consulting the most representative organizations of employers and workers, may exclude from the application of the Convention or of certain provisions thereof:
- other particular categories of contract workers who otherwise enjoy adequate protection; or
- particular branches of economic activity when the application of the Convention in respect of them would raise special problems of substantial nature.
3. A Member which ratifies the Convention shall specify, in its first report under article 22 of the Constitution of the International Labour Organization, any exclusion of which it avails itself under paragraph 2 and give the reasons therefor.
Article 3
The Member shall ensure that adequate measures, in accordance with national law and practice, are taken to prevent accidents and injury to the health of contract workers arising out of, linked with or occurring in the course of contract labour.
Article 4
Measures shall be taken, in accordance with national law and practice:
- to promote adequate protection in relation to the payment of:
- i amounts due to contract workers for the work performed; and
- any social insurance contributions payable on behalf of such workers in relation to this work;
- to ensure that the responsibilities for fulfilling the financial obligations envisaged in subparagraph (a) above are clearly determined; and
- to ensure that contract workers receive compensation in case of injury or disease resulting from the performance of contract labour.
Article 5
The Member shall promote equality of treatment between contract workers and workers with a recognized employment relationship, taking into account the conditions applicable to other workers performing work which is essentially similar, under similar conditions.
Article 6
1. Measures shall be taken to ensure that contract workers receive the same protection as workers with a recognized employment relationship with regard to:
- the right to organize and the right to bargain collectively;
- freedom from discrimination in employment and occupation on the basis of race, colour, sex, religion, political opinion, national extraction or social origin;
- minimum age.
2. Measures shall be taken, as appropriate, to ensure that contract workers enjoy adequate protection as regards:
- working time and other working conditions;
- maternity protection;
- occupational safety and health;
- remuneration;
- statutory social security.
Article 7
The Member shall take measures to ensure that rights or obligations under labour or social security laws or regulations are not denied or avoided when contract labour is used.
Article 8
1. The Convention shall be applied by means of laws or regulations or by any other means consistent with national practice, such as court decisions, arbitration awards or collective agreements.
2. Effective measures appropriate to the means chosen pursuant to paragraph 1 shall be taken to ensure the proper application and enforcement of regulations or provisions concerning contract labour through adequate inspection or otherwise.
3. Adequate remedies, including penalties where appropriate, shall be provided for and effectively applied in case of violations of the regulations or provisions referred to in paragraph 2.
Article 9
The provisions of the Convention shall not affect more favourable provisions under other international labour Conventions applicable to the workers concerned.
B. Proposed Recommendation concerning contract labour
The General Conference of the International Labour Organization,
Having been convened at Geneva by the Governing Body of the International Labour Office, and having met in its Eighty-sixth Session on 2 June 1998,
Having decided upon the adoption of certain proposals with regard to contract labour, which is the fifth item on the agenda of the session, and
Having determined that these proposals shall take the form of a Recommendation supplementing the Contract Labour Convention, 1998;
adopts this day of June of the year one thousand nine hundred and ninety-eight the following Recommendation, which may be cited as the Contract Labour Recommendation, 1998:
1. The provisions of this Recommendation should be applied in conjunction with those of the Contract Labour Convention, 1998 (hereafter referred to as "the Convention").
2. In determining, for the purpose of the definition of the term "contract labour", whether the conditions of dependency or subordination referred to in Article 1(a) of the Convention are met, a Member could consider, inter alia, the following criteria:
- the extent to which the user enterprise determines when and how work should be performed, including working time and other conditions of work of the worker;
- whether the user enterprise pays amounts due to the worker periodically and according to pre-established criteria;
- the extent of supervisory authority and control of the user enterprise over the worker with respect to the work performed, including disciplinary authority;
- the extent to which the user enterprise makes investments and provides tools, materials and machinery, among other things, to perform the work concerned;
- whether the worker can make profits or run the risk of losses in performing the work;
- whether the work is performed on a regular and continuous basis;
- whether the worker works for a single user enterprise;
- the extent to which the work performed is integrated into the normal activities of the user enterprise;
- whether the user enterprise provides substantial job-specific training to the worker.
3. Measures should be taken to ensure that contract workers are informed, in an appropriate and easily understandable manner, about their conditions of work, the amounts due to them and how these amounts will be determined.
4. Measures should be taken, as appropriate, to ensure that contract workers are afforded equal treatment with employees of the user enterprise or, as the case may be, with employees of the subcontractor or of the intermediary, for performing work which is essentially similar, under similar conditions and requiring similar qualifications.
5. In specified circumstances (for example, where contract labour is used mainly or solely for the purpose of denying rights or avoiding obligations under labour or social security laws and regulations), contract workers should be treated as employees of the user enterprise or, as the case may be, as employees of the subcontractor or of the intermediary.
6. In accordance with national law and practice, contract workers should not be made available to a user enterprise to replace workers of that enterprise who are on strike.
7. Measures should be taken to ensure that contract workers may refuse to perform work which they have reasonable justification to believe poses a serious danger to their safety and health.
8. (1) National law and practice might allocate the respective responsibilities of the subcontractor (or the intermediary, as the case may be) and the user enterprise for fulfilling obligations towards contract workers, taking into account the extent of the workers' dependency on or subordination to them.
(2) When the party responsible for fulfilling the obligations referred to in subparagraph (1) does not meet them, the other party, where appropriate, should be made responsible for doing so.
(3) To the extent provided for by national law, financial obligations towards a contract worker may be jointly and severally shared by the subcontractor and the user enterprise or by the intermediary and the user enterprise, or by all of them, as the case may be.
9. In the event of insolvency of the user enterprise, the subcontractor or the intermediary, the outstanding claims of a contract worker should be given the same priorities as those established by national law and practice with regard to a worker's claims against his or her employer.
10. (1) Recourse to contract labour might, according to national laws and regulations, be made subject to an obligation incumbent on the subcontractor or the intermediary to register with or to obtain a licence from the competent authority.
(2) Registration or licensing might depend upon the subcontractor or the intermediary demonstrating its viability and capacity to meet its obligations towards contract workers, or posting a bond sufficient to cover its obligations to such workers.
11. (1) Measures appropriate to national conditions should be taken, where necessary, to encourage collective bargaining as a means of determining and improving the terms and conditions of work of contract workers.
(2) Any obstacles to the exercise of the right of contract workers to join organizations of their choice and to participate in the activities of such organizations should be identified and eliminated.
12. Members should, where possible, compile, keep up to date and make publicly available statistics and other information on contract labour.
13. Members should take measures, as appropriate, to provide protection to contract workers from other countries who perform work in their territory.
1 ILO: Contract Labour, Report V (1), International Labour Conference, 86th Session, Geneva, 1998.
2 Replies that arrived too late to be included in the report may be consulted by delegates at the Conference.
3 The Government of Belgium included with its reply an opinion from the National Labour Council (CNT).
4 Report V (2A) will be in the hands of governments approximately one month after the present volume and will contain summaries of the replies received and Office commentaries.