Fee-Charging Employment Agencies Convention (Revised), 1949 (No. 96) - Argentina (Ratification: 1996)

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Part III of the Convention. Regulation of fee-charging employment agencies. Articles 13 and 14. Supervision of fee-charging employment agencies. The Committee notes the observations made by the General Confederation of Labour of the Argentine Republic (CGT RA), received on 2 September 2016, and the Confederation of Workers of Argentina (CTA Workers), received on 6 September 2016, indicating that the inspection work of the Ministry of Labour and Employment (hereinafter Ministry of Labour) is still insufficient with regard to fee-charging employment agencies. According to the CTA Workers, this is borne out by the lack of statistical data on the operations of such agencies. The CTA Workers adds that non-compliance with Article 13 of the Convention continues. The Government indicates in its report that the unofficial nature of some agencies, recruitment through informal channels, and the low profile of certain premises all combine to make the Ministry of Labour’s inspection work more complex. The Government refers to the establishment of the Special Unit for the Inspection of Irregular Work through Decision No. 670/2016 of 21 July 2016. In reply to the observations made by the CGT RA in 2015, the Government indicates that there is no apparent legal vacuum with regard to administrative infringements, since section 3(g) of Act No. 25.212 of 23 December 1999 provides that serious violations constitute any other violations or misuse of the labour regulations, which have been established to protect workers’ rights, guarantee the exercise of labour administration activities and prevent unfair competition for employers resulting from such violations or misconduct. It adds that for infringements of this type the prescribed administrative penalty is a fine. The Government explains that the Ministry of Labour has not received any complaint regarding employment agencies which are operating unofficially, nor has it authorized any agency to collect fees from workers. The Committee notes the information provided by the Government regarding the fines of 215,000 and 45,000 Argentine pesos imposed in 2015 and 2016, respectively, on two agencies that imposed fees on workers in exchange for promising work, and notes the information on inspections carried out at an employment agency placing people in private households; in this case no infringements were established. The Committee recalls that Article 13 of the Convention provides for the withdrawal of licences or authorizations. Legal provisions exist which, in the case of enterprises providing casual services, establish penalties such as fines, closure or withdrawal of the administrative authorization and cancellation of the registration in the Official Register. However, these enterprises are not covered by the provisions of the Convention, since they are unable to act as employment agencies under section 1(a) of Decree No. 489/2001 of 26 April 2001. The Committee requests the Government to indicate which provisions of the national legislation give effect to Article 13 of the Convention. The Committee also requests the Government to continue providing information on the measures taken to supervise the operations of fee-charging employment agencies, particularly with respect to the number and nature of the infringements observed and the penalties imposed.

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

The Committee notes the observations made by the General Confederation of Labour of the Argentine Republic (CGT RA), received on 2 September 2015.

Part III of the Convention. Regulation of fee-charging employment agencies. Articles 13 and 14 of the Convention. Supervision of fee-charging employment agencies. In response to the concerns expressed by the CGT RA and the Confederation of Workers of Argentina (CTA) in 2014, the Government maintains that only three cases have been filed against enterprises in relation to employment agencies and that, in all those cases, it was proven that the agencies acted as intermediaries between workers and employers without being authorized to do so. Moreover, the fee that the intermediaries received from the applicants was not paid when they received their first remuneration, but rather, such payment was used to finance advertisements offering their labour. The CGT RA indicates that the monitoring and inspections carried out by the Ministry of Labour are inadequate, as many employment agencies operate without prior authorization, while others, which do have authorization, charge workers fees that exceed those prescribed by law. Furthermore, the CGT RA indicates that the national legislation does not establish the sanctions required by Article 13 of the Convention. The Committee once again requests the Government to provide information on the measures taken to monitor the operations of fee-charging employment agencies. Please also include information on the circumstances in which appropriate penal sanctions have been imposed and licences or authorizations have been revoked for violations of the provisions of the Convention.

[The Government is asked to reply in detail to the present comments in 2016.]

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Part III of the Convention. Article 14. Regulation of fee-charging employment agencies. In response to the previous request, the Government reiterates in its 2014 report that, although Decree No. 489/2001 issued regulations under Part III of the Convention, but no violations of the regulations have been recorded and no court decisions on the issue have been reported. The Committee notes the observations of the General Confederation of Labour Argentine Republic (CGT RA) and of the Confederation of Workers of Argentina (CTA), received in September and October 2014, which indicate that in fact there have been countless cases of practices that are contrary to Decree No. 489/2001. The inspection services and the judicial response are unable to prevent or remedy the situation effectively. The two trade unions indicate that there is a lack of statistical data on the action taken by the labour inspection services in this respect. The Committee requests the Government to provide its comments on these observations of the trade union organizations. The Committee once again requests the Government to provide in the report due in 2015, information on the measures taken to monitor the agencies covered by the Convention, in addition to relevant information on the number and nature of the violations reported by the labour inspection services.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Regulation of fee-charging employment agencies. The Committee notes the Government’s report received in November 2013 in which it indicates that Decree No. 489/2001 issuing regulations under Part III of the Convention has not been given effect in practice. The Government adds that its application has not been requested by the parties concerned. The Committee notes the comments of the Confederation of Labour (CGT RA), transmitted to the Government in September 2013, in which the trade union states that, despite the provisions of Decree No. 489/2001, there are innumerable cases that are not in compliance in practice. The inspection services and the judicial response appear to be incapable of preventing or remedying the situation effectively. Nor are there official statistics on the supervision carried out. The Committee once again asks the Government to provide information on the measures taken to monitor the operations of the agencies covered by Decree No. 489/2001. The Committee requests the Government to include relevant information in its report on the number and nature of the violations reported by the labour inspection services (Article 14 of the Convention and Parts IV and V of the report form).

[The Government is asked to reply in detail to the present comments in 2014.]

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Regulation of fee-charging employment agencies. With reference to its previous comments, the Committee notes the report provided in September 2011. The Government recapitulates the legislation and policies adopted since 2004 with a view to promoting active employment policies and emphasizes that the network of public employment services (350 offices in 23 provinces) were able to assist over 400,000 persons in 2010 and 2011. The Committee recalls that in its 2006 observation and its 2010 direct request, the Government was asked to provide practical information on the measures taken to monitor the operations of agencies covered by Decree No. 489/2001, giving effect to Part III of Convention No. 96. The Committee also refers to the 2010 observation relating to the Employment Service Convention, 1948 (No. 88). The Committee once again requests the Government to provide information on the measures adopted to monitor the operations of agencies covered by Decree No. 489/2001. It requests the Government to include with its next report the decisions made by courts on matters of principle relating to the application of the Convention, summaries of inspection reports and also relevant information on the number and nature of the contraventions reported (Article 14 of the Convention and Parts IV and V of the report form).

[The Government is asked to reply in detail to the present comments in 2013.]

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

Regulation of fee-charging employment agencies. The Committee notes the brief report received in September 2010. In its 2006 observation, the Committee noted the provisions of Decree No. 489/2001 of 26 April 2001 approving the regulation of Part I, Article 1, and Part III, Articles 10, 11 and 12 of the Convention. The Committee asks the Government to provide practical information on the measures taken by the competent authority to monitor the operations of agencies covered by the Convention, indicating whether the courts of law have ruled on questions of principle relating to the application of the Convention, and providing summaries of inspection reports, information on the number and nature of contraventions reported and any other particulars bearing on the practical application of the Convention (Article 14 of the Convention and Parts IV and V of the report form).

[The Government is asked to reply in detail to the present comments in 2011.]

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

1. The Committee notes the detailed reply made by the Government in November 2005 to its previous direct request. The Government provided a copy of the opinion of the Attorney-General (Procurador del Tesoro de la Nación) dated 25 January 2000 (Opinion 232:061), concerning the request for advice on the validity of the legal provisions which applied prior to the ratification of the Convention. The Attorney-General found that sections 10 and 18 of Act No. 13591, which prohibited the operation of private employment agencies conducted with a view to profit, had become void since the approval of the ratification of Convention No. 96, Part III of which regulates such agencies. The Attorney-General indicated that “in accordance with the provisions of articles 31 and 75(22) of the National Constitution, treaties have a higher ranking than laws; it is accordingly clear that the Convention … is ranked above the law; it was approved by the National Congress … and it is not necessary for current domestic law to be adapted to its provisions. The ranking of the provisions of the Convention … is higher than that of internal standards on matters relating to the subject covered, and they therefore prevail over such internal standards”. The Committee notes with satisfaction the information provided and welcomes the approach adopted by the Government to ensure the application of the Convention. Nevertheless, the Committee recalls that the Governing Body invited the States parties to Convention No. 96 to contemplate ratifying, if appropriate, the Private Employment Agencies Convention, 1997 (No. 181), the ratification of which involves the immediate denunciation of Convention No. 96.

2. Regulation of fee-charging employment agencies. With reference to its previous direct request, the Committee also notes with satisfaction the detailed provisions of Decree No. 489/2001, of 26 April 2001, approving regulations issued under Article 1 of Part I and Articles 10, 11 and 12 of Part III of the Convention. The Committee notes that neither cooperatives nor temporary work agencies may act as employment agencies. The Committee requests the Government to provide practical information in future reports on the measures adopted by the competent authority to supervise the activities of the agencies covered by the Convention, including whether courts of law have given decisions involving questions of principle relating to its application and providing summaries of inspection reports, information regarding the number and nature of the contraventions reported, and any other particulars bearing on the practical application of the Convention (Article 14 of the Convention and Parts IV and V of the report form).

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

1. The Committee notes the Government’s report for the period ending 30 June 2000. The Government has provided the text of Decree No. 342 of 24 February 1992 setting out the characteristics of the employment relationship between a temporary service enterprise and workers providing services in user enterprises. The Committee notes that Part III of Convention No. 96, which has been accepted by Argentina, provides for the regulation of fee-charging employment agencies, including employment agencies conducted with a view to profit. Under the terms of section 14 of Decree No. 342, temporary service enterprises obtain their authorization from the Ministry of Labour and Social Security, although the Government has not yet adopted the measures for the supervision of fee-charging employment agencies required by Article 10 of the Convention. The Committee trusts that the Government’s next report will contain information on the measures adopted for the supervision of placement activities as set out in the above provision of the Convention.

2. Article 14. The Government states in its report that section 10 of Act No. 13591, which prohibits the operation of private employment agencies conducted with a view to profit, has not yet been explicitly repealed. The Committee hopes that the Government’s next report will contain all the necessary information on the measures taken by the competent authority to supervise the activities of fee-charging employment agencies, including more particularly agencies conducted with a view to profit.

3. Articles 11 and 12. Please indicate in the next report the measures taken for the supervision of fee-charging employment agencies not conducted with a view to profit mentioned in Article 11, including all relevant information in this respect.

4. Parts III and V of the report form. The Committee notes that the means of action of the Directorate of Labour Inspection and Individual Employment Relationships are limited and hopes that the necessary measures will be taken in the near future to ensure supervision of the application of Convention No. 96, and that information will be provided on the organization and operation of the inspection services.

5. The Committee notes the Government’s statement to the effect that a draft text has been prepared for the submission of Convention No. 181 to the Legislative Authority, with the favourable opinion of the Executive Authority for its ratification. The Committee trusts that, as Convention No. 96 is still in force, the Government will provide detailed reports on its application, including information on the measures adopted to ensure that full effect is given to its provisions in both national law and practice.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

Part III of the Convention. The Committee notes the brief indications supplied by the Government in its first report on the application of the Convention. It requests the Government to supply full information in its second report on the application of Articles 10 to 15 of the Convention, and in reply to the questions contained in the report form.