Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Private Employment Agencies Convention, 1997 (No. 181) - Fiji (Ratification: 2013)

The Committee notes the Government’s first report on the application of the Convention and the main provisions regulating the activities of private employment agencies: the Employment Relations (Employment Agencies) Regulations, of 2008, passed under the Employment Relations Promulgation, No. 36 of 2007.

Articles 1 and 12 of the Convention. Provision of other services related to jobseeking. The Government refers to “employment services”, “employment agency” and “employment business” in sections 3(1) and 13(1)(d) of the 2008 Regulations, which defines the activities of private employment agencies under Article 1(1)(a), also referred to as mediation agencies, and under Article 1(1)(b), also referred to as temporary work agencies. The Committee requests the Government to indicate whether private employment agencies are authorized to offer other services related to jobseeking within the meaning of Article 1(1)(c) of the Convention.

Article 5(2). Targeted programmes to assist disadvantaged workers. The Government refers to the measures of the public National Employment Centre with regard to provisions, programmes, activities or special measures that aim to improve conditions of disadvantaged or discriminated individuals or groups. The Committee requests the Government to indicate whether private employment agencies participate in any of these measures or in other special services or targeted programmes designed to assist the most disadvantaged workers in their jobseeking activities.

Article 7. Fees and costs. The Committee notes that the 2008 Regulations contain a general authorization for private employment agencies to charge fees to workers. Imposing certain pecuniary obligations on the user, the fourth schedule of the Regulations only displays the fees for the most basic services and enables agencies to charge for unspecified “additional services”. The Committee further notes that section 4(6) of the 2008 Regulations allows fees to be charged to applicants for employment for the provision of unspecified employment-related services. The Committee requests the Government to provide information on the reasons for authorizing such exceptions. Please also provide information on the consultations with the most representative organizations of employers and workers in that regard and also on whether exceptions to Article 7(1) of the Convention are limited to certain categories of workers, as well as specified types of services provided by private employment agencies.

Article 8. Protection of migrant workers. The Government refers to the authorization and vetting process of private employment agencies in which they have to indicate the proposed area of activity (section 7(2)(c) of the 2008 Regulations). There is also a requirement to have contracts of employment outside Fiji endorsed by the Government before signature, as laid down in section 13(1)(b) of the Regulations. The Committee notes that, in its Third Schedule (Regulation 13), the Regulations provide for a sample “Foreign Contract of Service” and in sections 18 and 23 for penalties in case of violation. The Committee requests the Government to provide information on how the vetting process works in practice, including whether there were abuses of migrant workers recruited or placed in its territory by private employment agencies and whether penal measures have been applied against private employment agencies violating the Regulations concerning migration.

Articles 11(c)–(j) and 12. Measures to ensure adequate protection and allocation of responsibilities of private employment agencies and user enterprises. The Government states that all workers enjoy the protection afforded under Part 2 of Promulgation No. 36 of 2007, which refers to the fundamental principles and rights at work. Recalling its 2010 General Survey concerning employment instruments, the Committee wishes to highlight the need to have a clear legal framework in place to secure adequate protection in all areas enumerated in Articles 11 and 12 of the Convention. Given the particularities of working arrangements in which employees work for a user enterprise that assigns and supervises the execution of the work and the indeterminacy of responsibility, it is necessary for member States to address these particularities through measures that ensure that in each case effective responsibility is determined (2010 General Survey concerning employment instruments, paragraph 313). The Committee requests the Government to provide information on all matters referred to in Article 11(c)–(j) and on how the responsibilities are allocated between private employment agencies and the user enterprises in the areas described in Article 12.

Article 13(1) and (2). Cooperation between the public employment service and private employment agencies. The Government states that it exercises a regulatory and advisory function through the National Employment Centre with regard to private employment agencies. Section 51 of the National Employment Centre Decree, 2009, tasks the National Employment Centre with fostering research, dissemination and marketing of information, data and services. The Committee requests the Government to indicate whether the National Employment Centre cooperates with private employment agencies in research, dissemination and marketing of information, data and services.

Article 13(3) and (4). Reporting and publication. The Government states that the Ministry of Employment, Productivity and Industrial Relations (Ministry of Employment) is the competent authority that registers private employment agencies. The Committee notes that the registration process, as outlined in the 2008 Regulations, requires private employment agencies to submit details of their intended activities, and statistics, where relevant. Section 8(2) of the Regulations provides the possibility for the Permanent Secretary to pass sub-regulations to further regulate the authorization and registration process. The Committee requests the Government to indicate whether the Permanent Secretary has made use of the possibility to pass sub-regulations and whether these regulations contain a requirement to provide information in the meaning of Article 13(3) and (4) of the Convention to the competent authority. Please also include examples of the information that private employment agencies must provide to the Ministry of Employment and specify the information that is made publicly available and the intervals at which this is done.

Article 14. Application of the Convention in practice. The Government states that the Ministry of Employment, through the Labour Standards Service, enforces the legislation including penalty notices for breaches by employers and conducts follow-up inspections. The Committee notes that, currently, there are two private employment agencies operating within the framework of the 2008 Regulations and six unauthorized employment agencies. In regard to the latter, the Labour Standards Service has investigated the cases and referred them for prosecution. The Committee requests the Government to provide examples of the remedies provided in cases of violations of the Convention, including extracts of inspection reports, information on the number of workers covered by the measures giving effect to the Convention, and the number and nature of infringements reported.