C181 - Private Employment Agencies Convention, 1997 (No. 181)
Convention
concerning Private Employment Agencies (Entry into force: 10 May 2000)
Adoption: Geneva, 85th ILC session (19 Jun 1997)
Preamble
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-fifth Session on 3 June 1997, and
Noting
the provisions of the Fee-Charging Employment Agencies Convention (Revised),
1949, and
Being
aware of the importance of flexibility in the functioning of labour markets,
and
Recalling
that the International Labour Conference at its 81st Session, 1994, held the
view that the ILO should proceed to revise the Fee-Charging Employment Agencies
Convention (Revised), 1949, and
Considering
the very different environment in which private employment agencies operate,
when compared to the conditions prevailing when the above-mentioned Convention
was adopted, and
Recognizing
the role which private employment agencies may play in a well-functioning
labour market, and
Recalling
the need to protect workers against abuses, and
Recognizing
the need to guarantee the right to freedom of association and to promote
collective bargaining and social dialogue as necessary components of a
well-functioning industrial relations system, and
Noting
the provisions of the Employment Service Convention, 1948, and
Recalling
the provisions of the Forced Labour Convention, 1930, the Freedom of
Association and the Protection of the Right to Organise Convention, 1948, the
Right to Organise and Collective Bargaining Convention, 1949, the
Discrimination (Employment and Occupation) Convention, 1958, the Employment
Policy Convention, 1964, the Minimum Age Convention, 1973, the Employment
Promotion and Protection against Unemployment Convention, 1988, and the
provisions relating to recruitment and placement in the Migration for
Employment Convention (Revised), 1949, and the Migrant Workers (Supplementary
Provisions) Convention, 1975, and
Having
decided upon the adoption of certain proposals with regard to the revision of
the Fee- Charging Employment Agencies Convention (Revised), 1949, which is the
fourth item on the agenda of the session, and
Having
determined that these proposals shall take the form of an international
Convention;
adopts,
this nineteenth day of June of the year one thousand nine hundred and
ninety-seven, the following Convention, which may be cited as the Private
Employment Agencies Convention, 1997:
Article
1
- 1. For the purpose of this
Convention the term private employment agency means any
natural or legal person, independent of the public authorities, which
provides one or more of the following labour market services:
- (a) services for matching
offers of and applications for employment, without the private employment
agency becoming a party to the employment relationships which may arise
therefrom;
- (b) services consisting of
employing workers with a view to making them available to a third party,
who may be a natural or legal person (referred to below as a "user
enterprise") which assigns their tasks and supervises the execution
of these tasks;
- (c) other services relating to
jobseeking, determined by the competent authority after consulting the
most representative employers and workers organizations, such as the
provision of information, that do not set out to match specific offers of
and applications for employment.
- 2. For the purpose of this
Convention, the term workers includes jobseekers.
- 3. For the purpose of this
Convention, the term processing of personal data of workers
means the collection, storage, combination, communication or any other use
of information related to an identified or identifiable worker.
Article
2
- 1. This Convention applies to
all private employment agencies.
- 2. This Convention applies to
all categories of workers and all branches of economic activity. It does
not apply to the recruitment and placement of seafarers.
- 3. One purpose of this
Convention is to allow the operation of private employment agencies as
well as the protection of the workers using their services, within the
framework of its provisions.
- 4. After consulting the most
representative organizations of employers and workers concerned, a Member
may:
- (a) prohibit, under specific
circumstances, private employment agencies from operating in respect of
certain categories of workers or branches of economic activity in the provision
of one or more of the services referred to in Article 1, paragraph 1;
- (b) exclude, under specific
circumstances, workers in certain branches of economic activity, or parts
thereof, from the scope of the Convention or from certain of its
provisions, provided that adequate protection is otherwise assured for
the workers concerned.
- 5. A Member which ratifies this
Convention shall specify, in its reports under article 22 of the
Constitution of the International Labour Organization, any prohibition or
exclusion of which it avails itself under paragraph 4 above, and give the
reasons therefor.
Article
3
- 1. The legal status of private
employment agencies shall be determined in accordance with national law
and practice, and after consulting the most representative organizations
of employers and workers.
- 2. A Member shall determine the
conditions governing the operation of private employment agencies in
accordance with a system of licensing or certification, except where they
are otherwise regulated or determined by appropriate national law and
practice.
Article
4
Measures
shall be taken to ensure that the workers recruited by private employment
agencies providing the services referred to in Article 1 are not denied the
right to freedom of association and the right to bargain collectively.
Article
5
- 1. In order to promote equality
of opportunity and treatment in access to employment and to particular
occupations, a Member shall ensure that private employment agencies treat
workers without discrimination on the basis of race, colour, sex,
religion, political opinion, national extraction, social origin, or any
other form of discrimination covered by national law and practice, such as
age or disability.
- 2. Paragraph 1 of this Article
shall not be implemented in such a way as to prevent private employment
agencies from providing special services or targeted programmes designed
to assist the most disadvantaged workers in their jobseeking activities.
Article
6
The
processing of personal data of workers by private employment agencies shall be:
- (a) done in a manner that
protects this data and ensures respect for workers privacy in accordance
with national law and practice;
- (b) limited to matters related
to the qualifications and professional experience of the workers concerned
and any other directly relevant information.
Article
7
- 1. Private employment agencies
shall not charge directly or indirectly, in whole or in part, any fees or
costs to workers.
- 2. In the interest of the
workers concerned, and after consulting the most representative
organizations of employers and workers, the competent authority may
authorize exceptions to the provisions of paragraph 1 above in respect of
certain categories of workers, as well as specified types of services
provided by private employment agencies.
- 3. A Member which has
authorized exceptions under paragraph 2 above shall, in its reports under
article 22 of the Constitution of the International Labour Organization,
provide information on such exceptions and give the reasons therefor.
Article
8
- 1. A Member shall, after
consulting the most representative organizations of employers and workers,
adopt all necessary and appropriate measures, both within its jurisdiction
and, where appropriate, in collaboration with other Members, to provide
adequate protection for and prevent abuses of migrant workers recruited or
placed in its territory by private employment agencies. These shall
include laws or regulations which provide for penalties, including
prohibition of those private employment agencies which engage in
fraudulent practices and abuses.
- 2. Where workers are recruited
in one country for work in another, the Members concerned shall consider
concluding bilateral agreements to prevent abuses and fraudulent practices
in recruitment, placement and employment.
Article
9
A
Member shall take measures to ensure that child labour is not used or supplied
by private employment agencies.
Article
10
The
competent authority shall ensure that adequate machinery and procedures,
involving as appropriate the most representative employers and workers
organizations, exist for the investigation of complaints, alleged abuses and
fraudulent practices concerning the activities of private employment agencies.
Article
11
A
Member shall, in accordance with national law and practice, take the necessary
measures to ensure adequate protection for the workers employed by private
employment agencies as described in Article 1, paragraph 1(b) above, in
relation to:
- (a) freedom of association;
- (b) collective bargaining;
- (c) minimum wages;
- (d) working time and other
working conditions;
- (e) statutory social security
benefits;
- (f) access to training;
- (g) occupational safety and
health;
- (h) compensation in case of
occupational accidents or diseases;
- (i) compensation in case of
insolvency and protection of workers claims;
- (j) maternity protection and
benefits, and parental protection and benefits.
Article
12
A
Member shall determine and allocate, in accordance with national law and
practice, the respective responsibilities of private employment agencies
providing the services referred to in paragraph 1(b) of Article 1 and of user
enterprises in relation to:
- (a) collective bargaining;
- (b) minimum wages;
- (c) working time and other
working conditions;
- (d) statutory social security
benefits;
- (e) access to training;
- (f) protection in the field of
occupational safety and health;
- (g) compensation in case of
occupational accidents or diseases;
- (h) compensation in case of
insolvency and protection of workers claims;
- (i) maternity protection and benefits,
and parental protection and benefits.
Article
13
- 1. A Member shall, in
accordance with national law and practice and after consulting the most
representative organizations of employers and workers, formulate,
establish and periodically review conditions to promote cooperation
between the public employment service and private employment agencies.
- 2. The conditions referred to
in paragraph 1 above shall be based on the principle that the public
authorities retain final authority for:
- (a) formulating labour market
policy;
- (b) utilizing or controlling
the use of public funds earmarked for the implementation of that policy.
- 3. Private employment agencies
shall, at intervals to be determined by the competent authority, provide
to that authority the information required by it, with due regard to the
confidential nature of such information:
- (a) to allow the competent
authority to be aware of the structure and activities of private
employment agencies in accordance with national conditions and practices;
- (b) for statistical purposes.
- 4. The competent authority
shall compile and, at regular intervals, make this information publicly
available.
Article
14
- 1. The provisions of this
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. Supervision of the
implementation of provisions to give effect to this Convention shall be
ensured by the labour inspection service or other competent public
authorities.
- 3. Adequate remedies, including
penalties where appropriate, shall be provided for and effectively applied
in case of violations of this Convention.
Article
15
This
Convention does not affect more favourable provisions applicable under other
international labour Conventions to workers recruited, placed or employed by
private employment agencies.
Article
16
This
Convention revises the Fee-Charging Employment Agencies Convention (Revised),
1949, and the Fee-Charging Employment Agencies Convention, 1933.
Article
17
The
formal ratifications of this Convention shall be communicated to the
Director-General of the International Labour Office for registration.
Article
18
- 1. This Convention shall be
binding only upon those Members of the International Labour Organization
whose ratifications have been registered with the Director-General of the
International Labour Office.
- 2. It shall come into force 12
months after the date on which the ratifications of two Members have been
registered with the Director-General.
- 3. Thereafter, this Convention
shall come into force for any Member 12 months after the date on which its
ratification has been registered.
Article
19
- 1. A Member which has ratified
this Convention may denounce it after the expiration of ten years from the
date on which the Convention first comes into force, by an act
communicated to the Director-General of the International Labour Office
for registration. Such denunciation shall not take effect until one year
after the date on which it is registered.
- 2. Each Member which has
ratified this Convention and which does not, within the year following the
expiration of the period of ten years mentioned in the preceding
paragraph, exercise the right of denunciation provided for in this Article
will be bound for another period of ten years and, thereafter, may
denounce this Convention at the expiration of each period of ten years
under the terms provided for in this Article.
Article
20
- 1. The Director-General of the
International Labour Office shall notify all Members of the International
Labour Organization of the registration of all ratifications and acts of
denunciation communicated by the Members of the Organization.
- 2. When notifying the Members
of the Organization of the registration of the second ratification, the
Director-General shall draw the attention of the Members of the
Organization to the date upon which the Convention shall come into force.
Article
21
The
Director-General of the International Labour Office shall communicate to the Secretary-
General of the United Nations, for registration in accordance with article 102
of the Charter of the United Nations, full particulars of all ratifications and
acts of denunciation registered by the Director-General in accordance with the
provisions of the preceding Articles.
Article
22
At
such times as it may consider necessary, the Governing Body of the
International Labour Office shall present to the General Conference a report on
the working of this Convention and shall examine the desirability of placing on
the agenda of the Conference the question of its revision in whole or in part.
Article
23
- 1. Should the Conference adopt
a new Convention revising this Convention in whole or in part, then,
unless the new Convention otherwise provides -
- (a) the ratification by a
Member of the new revising Convention shall ipso jure involve the
immediate denunciation of this Convention, notwithstanding the provisions
of Article 19 above, if and when the new revising Convention shall have
come into force;
- (b) as from the date when the
new revising Convention comes into force, this Convention shall cease to
be open to ratification by the Members.
- 2. This Convention shall in any
case remain in force in its actual form and content for those Members
which have ratified it but have not ratified the revising Convention.
Article
24
The
English and French versions of the text of this Convention are equally
authoritative.
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