Private Employment Agencies Convention, 1997 (No. 181) - Portugal (Ratification: 2002)

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

The Committee notes the observations from the General Confederation of Portuguese Workers – National Trade Unions (CGTP–IN) and the General Workers’ Union (UGT) sent with the Government’s report. The Committee also notes the detailed information sent by the Government in reply to its previous request concerning the services of agencies covered by the Convention (Article 1(1)(c) of the Convention) and the legislative provisions concerning temporary work, taking into consideration the areas covered by Article 12. The Government lists in its report the legislative texts simplifying the regulations governing the operations of private employment agencies and access thereto for jobseekers which have been adopted since 2009.

Article 7. Fees and costs. In reply to the Committee’s request concerning the possibility of payment of fees by workers to private employment agencies, the Government indicates that section 187(5) of the Labour Code, as amended, prohibits agencies from imposing any financial charges whatsoever on temporary workers, particularly for vocational guidance and training services. In the context of these activities, agencies must ensure that services for jobseekers are free of charge and may not collect any amounts in cash, directly or indirectly. The Committee requests the Government to continue to provide information on any eventual development in this matter.

Article 8. Protection of migrant workers. The Government indicates that migrant workers recruited or placed in employment in the national territory have the same rights and obligations as Portuguese workers, without prejudice to any more favourable treatment arising from the legislation or employment contract. Migrant workers also enjoy the right to the conditions of work established by law and by generally applicable collective agreements. The Committee notes that the competent inspection services can provisionally suspend the activities of any agency that engages in illegal practices. As regards workers placed in employment abroad, the UGT considers that, further to the amendment of Act No. 5/2014 of 12 February 2014, the protection of such workers has been weakened since some of the obligations relating to this type of placement have been abolished. The UGT cites as an example the abolition of the obligation to constitute a deposit, which was designed to guarantee the repatriation of any applicant for employment placed abroad, in the event of any failure to honour the employment contract that could not be ascribed to the applicant. Similarly, the CGTP–IN indicates that the amendment has had serious consequences, in view of the frequency of cases in which Portuguese workers placed abroad find themselves in living and working conditions that do not correspond to the offer made. In reply to the observations made by the workers’ organizations, the Government indicates that the agency’s responsibility to ensure the repatriation of workers placed outside the national territory in the event of a breach of contract or failure to honour the promise of work arising from a cause that cannot be ascribed to the applicant continues for six months after the placement. According to the Government’s indications, penalties for administrative offences have been stepped up. The Committee requests the Government to continue providing information on the steps taken to ensure adequate protection for migrant workers recruited or placed in its territory by private employment agencies.

Article 13. Cooperation between the public employment service and private employment agencies. The Government indicates that the public employment service keeps the national register of private employment agencies up to date and makes it available to the public. The register contains information on the nature of the activities of the agencies, relating in particular to the suspension, prohibition or cessation of activity. The Committee requests the Government to provide information on the conditions for promoting effective cooperation between the public employment service, including its local offices, and private employment agencies, and on the periodic review thereof.

Articles 10 and 14. Complaint procedures and supervision by the competent authorities. The Committee notes the data on the number of private employment agencies penalized by the labour inspectorate between 2010 and 2013. It notes that the number of infringements was 44 in 2010, 21 in 2011, two in 2012 and seven in 2013. The Committee requests the Government to provide examples of the procedures that exist for the investigation of alleged abuses or fraudulent practices relating to the activities of private employment agencies, specifying the number and nature of complaints received and the decisions whereby they were settled. The Committee also requests the Government to supply extracts from reports indicating the number of private employment agencies inspected, the number of infringements reported and penalties applied in relation to the provisions of the Convention, and also the number of workers registered with private employment agencies.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the Government’s report received in September 2009 containing detailed replies to the 2005 direct request. It notes that, in the case of a temporary work enterprise providing services to workers which are in violation of the rules respecting the minimum age and compulsory schooling (section 45 of Act No. 19/2007 of 22 May 2007), fines and a prohibition from operating shall be imposed on such an enterprise (Article 9 of the Convention).

Temporary work agencies. The Committee notes the provisions of Act No. 19/2007 of 22 May 2007 establishing the legal regime for temporary work and defining the conditions under which a licence may be granted to temporary work enterprises. Furthermore, Act No. 19/2007, and the provisions integrated into the Labour Code, determine the contractual regime governing temporary workers, temporary work enterprises and user enterprises. The Committee invites the Government to provide updated information in its next report on the implementation of the new legislative provisions respecting temporary work, taking into consideration the areas covered by Article 12 of the Convention. In this respect, the Government may refer to paragraphs 308–313 of the General Survey of 2010 on employment instruments on the protection required by the Convention for workers employed by temporary work agencies.

Article 1(1)(c). Services provided by the agencies covered by the Convention. In reply to the previous direct request, the Government indicates that Ministerial Decision No. 127/2009 of 30 January 2009 envisages the establishment of “vocational integration agencies” (GIP) for young and adult unemployed persons to determine means for their integration into the labour market in close cooperation with the Employment and Vocational Training Institute (IP). Temporary work enterprises may also provide selection, integration and vocational training services. However, the Government indicates that the exclusion provided by section 4(2) of Legislative Decree No. 124/89 of 14 April 1989 will probably be repealed in the context of the current legislative review. The Committee invites the Government to indicate in its next report whether services relating to jobseeking have been identified by the IP within the meaning of Article 1(1)(c) of the Convention.

Article 7(2) and (3). Supervision of exemptions authorized by the Convention. The Committee notes the provisions of section 13(4) of Act No. 19/2007 prohibiting temporary work enterprises from charging fees to applicants for temporary work. The Government indicates that, in the context of the current legislative review, the provisions of Legislative Decree No. 124/89 which authorize private employment agencies to charge fees from jobseekers will probably be repealed. The Committee recalls once again that the exemptions from the provisions of Article 7(1) of the Convention, under the terms of which private employment agencies shall not charge directly or indirectly, in whole or in part, any fees or costs to workers, are authorized in the interest of the workers’ concerned in respect of certain categories of workers as well as specified types of services provided by private employment agencies Article 7(2). Article 7(3) indicates that Members shall, in their reports on the application of the Convention, provide information on such exceptions and give the reasons therefor. The Committee invites the Government to provide updated information in its next report on the categories of workers and the types of services for which the payment of fees by workers to private employment agencies is authorized, as well as the amounts of such fees.

Protection of migrant workers. The Government recalls in its report the provisions of Act No. 19/2007 to strengthen the protection of workers placed abroad by temporary work enterprises. The Government also refers to the bilateral agreements concluded with Romania (2005) and Spain (2007) to prevent abuses and fraudulent practices in the recruitment, placement and employment of migrant workers. The Committee invites the Government to continue providing information on the measures adopted to afford adequate protection within the meaning of Article 8 of the Convention to migrant workers recruited or placed in its territory by private employment agencies. It hopes that, in the context of the current legislative review, the Government will be able to ensure that measures are adopted providing for penalties, including the “prohibition” of private employment agencies which engage in fraudulent practices and abuses.

Application in practice. The Government indicates that the IP, which is under tripartite management, examines applications for the authorization of private employment agencies. The Institute monitors temporary work agencies and keeps a register of them. The Committee invites the Government to indicate, following the reforms adopted or envisaged, the respective competences of the IP and the labour inspectorate in supervising the activities of private employment agencies and temporary work enterprises (Article 10). It also invites the Government to continue including in its report the relevant rulings of national courts relating to the legislative texts giving effect to the Convention (Part IV of the report form). Please also provide extracts from reports indicating the number of private employment agencies inspected, the violations reported and the sanctions imposed in relation to the provisions of this Convention, as well as data on the number of workers registered with private employment agencies. Please indicate the measures adopted to ensure the dissemination to the public of information concerning the activities of private employment agencies, as well as the information actually disseminated and its frequency (Article 13(3) and (4)).

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the Government’s first report on the application of the Convention. It would be grateful if the Government would, in its next report, provide more detailed information on the following points.

1. Article 1, paragraph 1(c), of the Convention. Services provided by the agencies covered by the Convention. The Committee notes that the services covered by the provisions of section 4(2) of Act No. 124/89 seem to exclude natural or legal persons who provide vocational selection and guidance services and technical support for human resource management. It requests the Government to specify the other activities which may be excluded from the Convention and provide information, if need be, on the extent of services provided by private employment agencies and temporary employment agencies determined by the competent authority in consultation with the most representative organizations of employers and workers.

2. Article 5, paragraph 1. Promotion of equal opportunity and treatment. The Committee notes the Government’s statement indicating that, as a part of the application of the general provisions, private employment agencies are prohibited from discriminating against workers based on national origin, sex, race, language, territory of origin, religion, political or ideological convictions, education, economic situation, social condition or sexual orientation. The Committee refers to its comments on the application of Conventions Nos. 100 and 111 and requests the Government to indicate the measures foreseen to ensure that the activities of private employment agencies do not lead to discrimination against the black and Roma populations of Portugal, which would prevent them from enjoying equal opportunities and treatment.

3. Article 7, paragraphs 2 and 3. Supervision of exemptions authorized by the Convention. The Committee notes that, by virtue of the provisions of sections 12 and 13 of Act No. 124/89, not-for-profit and for-profit fee-charging private employment agencies may require candidates for employment to hand over a fee. They may also request certain sums from candidates placed in posts through their intervention; these sums shall not exceed the maximum ceiling set by the national legislation. The Committee observes that exemptions to the provisions of paragraph 1 of this Article of the Convention, according to which private employment agencies shall not charge any fees or costs to workers, may only be authorized in respect of certain categories of workers or specified types of services if it is in the interest of the workers concerned (paragraph 2). Paragraph 3 states that all Members shall, in their reports on the application of the Convention, provide information on any exceptions with reasons. Consequently, the Committee requests the Government to provide information on the categories of persons and types of services for which payment by workers to private employment agencies is authorized.

4. Article 8, paragraph 1. Protection of migrant workers. The Committee notes that private employment agencies recruiting on Portuguese territory may only recruit foreign workers possessing valid residence permits (section 5(1) of Legislative Decree No. 124/89). The protection of workers placed abroad by temporary employment agencies is also provided for under sections 8(2)(c) and 12 of Legislative Decree No. 358/89. The Committee refers to its comments on the application of Convention No. 97 and notes that it is vital to guarantee migrant workers, including those in an irregular employment, effective protection against the illicit practices of private employment agencies to which they often fall victim owing to their vulnerability (paragraphs 27 and 28 of the conclusions on a fair deal for migrant workers in a global economy adopted at the 92nd Session of the International Labour Conference, June 2004). Consequently, the Committee requests the Government to provide information on the measures adopted in order to provide adequate protection for migrant workers recruited or placed in its territory by private employment agencies, as contemplated by this provision of the Convention. It recalls that these measures shall provide for penalties, including "prohibition" of those private employment agencies which engage in fraudulent practices and abuses.

5. Article 8, paragraph 2. Please specify whether bilateral agreements have been concluded, in particular with States not belonging to the European Union, to prevent abuses and fraudulent practices in the recruitment, placement and employment of migrant workers.

6. Article 9. Protection of children. The Committee refers to its comments on the application of Conventions Nos. 138 and 182 and requests the Government to specify the measures adopted to ensure that, in practice, child labour is not used or supplied by private employment agencies.

7. Article 10. Investigation procedures concerning the activities of private employment agencies. Please provide a description of the procedures and mechanisms in place, involving if needs be, the most representative organizations of employers and workers, to investigate complaints concerning private employment agencies.

8. Part IV of the report form. Please provide information on any decisions adopted by the national courts in relation to the legal texts concerning services of private employment agencies and temporary work agencies.

9. Part V of the report form. Please provide information on the manner in which the Convention is applied, in particular attaching extracts from general labour inspectorate reports (private employment agencies which have been investigated, infringements of the provisions of the present Convention, sanctions applied), as well as statistics on the number of workers registered with private employment agencies (extracts from statistical reports, national statistics ...). Please also supply extracts from statistical reports established based on information provided by private employment agencies and indicate the means used to ensure that this information concerning the activities of private employment agencies is made publicly available, as well as the information that has been effectively transmitted and the intervals at which this is done (Article 13, paragraphs 3 and 4).