Guide to Private Employment Agencies

116 Pages·2007·0.62 MB·English

GUIDE TO PRIVATE EMPLOYMENT AGENCIES
Regulation, monitoring and enforcement

Skills and Employability Special Action Programme
Department (EMP/SKILLS) to combat Forced Labour
(DECLARATION)
GUIDE TO PRIVATE
EMPLOYMENT AGENCIES
Regulation, monitoring and enforcement
INTERNATIONAL LABOUR OFFICE GENEVA
Copyright © International Labour Organization 2007
First published 2007
Publications of the International Labour Offi ce enjoy copyright under Protocol 2 of the Universal Copy-
right Convention. Nevertheless, short excerpts from them may be reproduced without authorization, on
condition that the source is indicated. For rights of reproduction or translation, application should be made
to the ILO Publications (Rights and Permissions), International Labour Offi ce, CH-1211 Geneva 22,
Switzerland, or by email: [email protected]. Th e International Labour Offi ce welcomes such applications.
Libraries, institutions and other users registered in the United Kingdom with the Copyright Licensing
Agency, 90 Tottenham Court Road, London W1T 4LP [Fax: (+44) (0)20 7631 5500; email: cla@cla.
co.uk], in the United States with the Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA
01923 [Fax: (+1) [phone]; email: [email protected]] or in other countries with associated
Reproduction Rights Organizations, may make photocopies in accordance with the licences issued to
them for this purpose.
ILO
Guide to Private Employment Agencies – Regulation, Monitoring and Enforcement
Geneva, International Labour Offi ce, 2007
ISBN 978-92-2-119779-9 (print)
978-92-2-119780-5 (web pdf)
978-92-2-119781-2 (web HTML)
Th e designations employed in ILO publications, which are in conformity with United Nations practice,
and the presentation of material therein do not imply the expression of any opinion whatsoever on the
part of the International Labour Offi ce concerning the legal status of any country, area or territory or of
its authorities, or concerning the delimitation of its frontiers.
Th e responsibility for opinions expressed in signed articles, studies and other contributions rests solely with
their authors, and publication does not constitute an endorsement by the International Labour Offi ce of
the opinions expressed in them.
Reference to names of fi rms and commercial products and processes does not imply their endorsement
by the International Labour Offi ce, and any failure to mention a particular fi rm, commercial product or
process is not a sign of disapproval.
ILO publications can be obtained through major booksellers or ILO local offi ces in many countries, or
direct from ILO Publications, International Labour Offi ce, CH-1211 Geneva 22, Switzerland. Cata-
logues or lists of new publications are available free of charge from the above address, or by email:
[email protected].
Visit our website: www.ilo.org/publns
Graphic design in Switzerland ALI
Typesetting in Switzerland WEI
Printed in France SAD
Table of contents
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Background and context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1. Considerations in drafting legislation . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2. Typology of PrEA legislation and regulations . . . . . . . . . . . . . . . . . . . 8
2.3. Institutional framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.4. Defi nition of PrEA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3. Legal requirements for establishing and operating PrEA . . . . . . . 13
3.1. Registration and licensing of the business . . . . . . . . . . . . . . . . . . . . . 13
General conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Registration fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Financial Capacities – Deposit and minimum start-up capital . . . . . . . . 16
Personal and professional qualifi cations . . . . . . . . . . . . . . . . . . . . . . . 17
Management capabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Marketing capabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Validity of licence and re-application . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Scope and transferability of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.2. Registration with other government business regulation
and tax authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
v
Guide to Private Employment Agencies. Regulation, monitoring and enforcement
3.3. Agreement to comply with labour and equal opportunity laws . . . . . . 23
3.4. Reporting requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.5. Collection of fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.6. Confi dentiality and sharing of clients
and jobseekers’ personal information . . . . . . . . . . . . . . . . . . . . . . . . 31
4. Government regulatory responsibilities . . . . . . . . . . . . . . . . . . . . . 33
4.1. Registration procedure and (possible) collection of registration fees . . 33
4.2. Monitoring the activities of PrEA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.3. Assessment of penalties for non-compliance with laws or regulations 36
4.4. Administration of a complaint procedure for workers . . . . . . . . . . . . . 37
4.5. Information reporting to responsible authorities . . . . . . . . . . . . . . . . . 38
5. Mechanisms of self-regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.1. Associations of Private Employment Agencies (PrEA) . . . . . . . . . . . . . 40
5.2. Codes of practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6. Relationship between PrEA and PES . . . . . . . . . . . . . . . . . . . . . . 45
7. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ANNEX I. ILO Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ANNEX II. CIETT Code of practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ANNEX III. Samples of national legislative language by topic . . . . . . . . . . 67
vi
Preface
For the past two decades, the increasing need to provide services to a rapidly growing
and fl exible labour market has led to the spectacular growth of private employment
agencies (PrEA). While PrEA have long complemented the traditional employment
market, they are now considered as a catalyst for new forms of human resource man-
agement services and can be contributors to better working conditions.
PrEA play an important role in the functioning of the labour market. With
the adoption of ILO Convention No. 181, Private Employment Agencies Conven-
tion, 1997, PrEA are now more positively recognized. Th e same Convention sets
the general parameters for the regulation, placement and employment of workers by
these agencies. Th rough this Convention, ILO seeks to assist its member States to
establish clear policies, legislation and implementing mechanisms for the eff ective
registration and licensing of PrEA, thereby helping them play a constructive role in
contributing to a labour market free from exploitative conditions.
Th is Guide to Private Employment Agencies: Regulation, Monitoring and
Enforcement has been prepared by the ILO to provide guidance to national legisla-
tors in draft ing legal frameworks in line with ILO Convention No. 181 and Recom-
mendation No. 188. Twenty countries have ratifi ed the Convention and ILO has
received a number of requests to assist national governments develop legal frame-
works to regulate PrEA. Th e Guide is rich in many examples of country legislation
and has collated specifi c provisions from both developed and developing countries.
It is a useful resource for national legislators and social partners to identify possible
gaps in their legislation and to fi nd appropriate solutions. Th e Guide provides an
overview of regulatory and institutional requirements, so that countries can be free
to adapt aspects of the legislation applicable to their own national situations.
Th is Guide is a collaborative undertaking between the Skills and Employ-
ability Department (EMP/SKILLS) and the Special Action Programme to Combat
vii
Guide to Private Employment Agencies. Regulation, monitoring and enforcement
Forced Labour (SAP-FL) in DECLARATION and has benefi ted from the review
and comments of key ILO external stakeholders: China Association for Employ-
ment Promotion (CAEP); Philippine Overseas Employment Administration
(POEA); International Organization of Employers (IOE); International Confed-
eration of Free Trade Unions (ICFTU); the International Confederation of Private
Employment Agencies (CIETT); and, key ILO offi ces. We would like to thank
them for their invaluable inputs.
Th is guide is a result of teamwork. We wish to thank the following: Mr. Lars
Th omann, ILO consultant, who developed the initial draft through extensive
research; Ms. Beate Andrees (SAP-FL, DECLARATION); Ms. Carmela Torres and
Ms. Ellen Hansen (EMP/SKILLS), who worked tirelessly to ensure that the Guide
appears in its proper form and content; and, Ms. Evelyn Ralph who edited it.
Christine Evans-Klock Zafar Shaheed
Director Director
Skills and Employability Programme on the Promotion of
Department (EMP/SKILLS) the Declaration on Fundamental Principles
and Rights at Work (DECLARATION)
viii
1
Introduction
Th e rapid growth of private employment agencies (PrEA) has been due to a number
of factors: a rapidly changing and fl exible labour market; constraints in the opera-
tions of public employment services; and, the use of other networks for placement.
Th ere are few industries in the world that have changed their image as profoundly
as the private recruitment industry. With companies increasingly seeking more fl ex-
ible and mobile staff , and with workers willing to move across borders under varied
work arrangements, private recruiters have become even more important to the effi -
cient functioning of labour markets. Against the backdrop of changing national
and global labour markets, PrEA have steadily increased their market share and
expanded their business activities. Th ey have placed over 8 million workers world-
wide and have enhanced the employability of jobseekers by keeping them in touch
with the job market and through training.1
Th is development has been fostered by the opening up of labour markets in
diff erent parts of the world where previously public institutions had the monopoly
on recruitment. Th e most dramatic examples can be found in the former communist
countries of Eastern Europe. In others, mainly developing countries, recruitment
is privatised “by default” as public employment services struggle with ineffi ciencies
and minimal resources. Th roughout the 1990s, more and more governments revised
policies that prevented PrEA from operating in the market. It was in this spirit
that ILO constituents adopted the new Private Employment Agencies Convention
No. 181 in 1997, replacing earlier standards that had been aimed at the abolition
of private recruitment agencies. Th is Convention recognizes that private employ-
ment agencies can contribute to the functioning of the labour market and sets gen-
eral parameters for the regulation, placement and employment of workers recruited
1. International Confederation of Private Employment Agencies (CIETT), July, 2006.
1
Guide to Private Employment Agencies. Regulation, monitoring and enforcement
by PrEA and, in particular, temporary work agencies. At the same time, the Con-
vention promotes cooperation between the public employment services (PES) and
PrEA to ensure the most effi cient functioning of the labour market, with the PES
still maintaining the authority in formulating labour market policies. Th e Private
Employment Agencies Recommendation No. 188 relates to Convention No. 181
and specifi es provisions for this cooperation. Currently, twenty (20) countries have
ratifi ed Convention 181. 2
Mindful of their negative image, in some quarters, leading PrEA have
developed mechanisms of self-regulation to promote good business practice and
receive recognition as legitimate players alongside the PES. Self-regulation, how-
ever, cannot replace the role of national legislators and law enforcement agen-
cies. National legislation has been seen as a means of balancing the interests of
PrEA with the need to protect rights of workers, as set out in ILO Convention
No. 181 and Recommendation No. 188 on Private Employment Agencies (please
refer to Annex I on the actual texts of the Convention and Recommendation).
Legislation can help in shaping the role of PrEA within the context of national
employment and migration policies, local specifi cities of labour markets and levels
of socio-economic development. Regulation should, therefore, ensure that PrEA
off er their services in the interests of their clients as well as in support of the
overall development goals of countries. It should improve the functioning of the
labour market, not serve as a tool to restrain competition and create an unneces-
sary burden for PrEA.
Many countries that started elaborating such legal frameworks have sought
guidance from the ILO. Th e present document seeks to provide guidance to
national legislators for draft ing laws in accordance with international standards.
At the same time, it should also be seen as a resource book that provides a com-
prehensive overview of regulatory frameworks, based on ILO Convention No. 181
and Recommendation No. 188, as well as other international labour standards
relating, for instance, to employment generation and migration. It may, therefore,
be useful to a range of practitioners, including workers’ and employers’ organiza-
tions. It also contains country examples that should not, however, be regarded as
best practice, but rather as illustrations of various possible approaches to draft ing
legislation on PrEA.
Th e Guide does not promote a “one-size-fi ts-all” approach. It gives an over-
view of a number of regulatory and institutional aspects, not necessarily relevant to
all countries. In those with highly developed labour markets, for example, many of
these aspects may already be suffi ciently covered by general labour law provisions.
In others, resources may be limited to such an extent that it would be impossible to
2. Th e countries which ratifi ed ILO Convention No. 181 are: Albania, Algeria, Belgium, Bul-
garia, Czech Republic, Ethiopia, Finland, Georgia, Hungary, Italy, Japan, Lithuania, Republic of Moldova,
Morocco, Netherlands, Panama, Portugal, Spain, Suriname and Uruguay.
2