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

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Articles 1(1)(c) and 12 of the Convention. Provision of other services related to jobseeking. In its previous comments, the Committee requested the Government to indicate whether private employment agencies (PEAs) are authorized to offer other services related to jobseeking within the meaning of Article 1(1)(c). The Government refers in its response to the broad definition of an “employment agency” or “employment business” set out in section 3(1) of the Employment Relations (Employment Agencies) Regulations of 2008 (the 2008 Employment Agencies Regulations), which includes “any activity carried out by a natural or legal person in Fiji for the enlisting, registration, recruitment or deployment of persons for employment in Fiji or outside Fiji but excludes any public employment exchanges or public authority”. The Government adds that this broad definition captures any activity for the purpose of jobseeking, but reasonably limits this to activities of this nature to ensure that private employment agencies do not take advantage of the system and the general public. The Committee acknowledges the Government’s reply, which responds to its previous request.

Article 5(2). Targeted programmes to assist disadvantaged workers. The Government reports that assistance to the most disadvantaged workers is primarily provided by the public National Employment Centre (NEC), which is under the Ministry of Employment. The NEC implements the National Employment Policy 2018–2022, which includes among its priorities the promotion of access to overseas employment, creating more income-generating opportunities for those reliant on subsistence activities for their livelihood, the promotion of greater gender equality in employment and enabling persons with disabilities and the elderly to earn an income. The Committee once again requests the Government to indicate whether and in what manner private employment agencies collaborate or participate in any of these measures relevant to implementation of the National Employment Policy 2018-2022, or in any other special services or targeted programmes designed to assist the most disadvantaged workers in securing employment (Article 5(2)).

Article 7. Fees and costs. The Committee notes the Government’s indication that pursuant to Schedule 4 of the 2008 Employment Agencies Regulations, an employment agency or employment business must not charge more than the fees outlined in the Schedule. The Committee once again notes that Schedule 4 displays fees for only the most basic services and enables agencies to charge for unspecified “additional services” (print-outs and database services). Moreover, of the four specific types of fees listed in Schedule 4, the two main services, namely securing jobseeker employment locally or overseas, do not disclose any amounts, stating only “a charge to be paid by the user”. The Government adds that, in addition to specific services, Schedule 4 provides that fees may be charged for unspecified “additional services”, indicating that such fees are capped at FJD 50 per hour of service. The Committee recalls that Article 7(1) contains a general prohibition on the charging of fees or other costs, directly or indirectly, in whole or in part, to jobseekers. Article 7(2) of the Convention provides for the possibility of permitting exceptions from the general prohibition in Article 7(1) of charging fees or other costs. However, the Committee draws the attention of the Government to its 2010 General Survey concerning employment instruments (2010 General Survey), paragraphs 333–334, in which it emphasized that exemptions from Article 7(1) may be authorized when they are “in the interest of the workers concerned” and made in relation to “certain categories of workers, as well as specified types of services provided by private employment agencies”. The Committee noted that use of this provision is subject to: (a) prior consultation of the most representative organizations of employers and workers; (b) transparency through the creation of an appropriate legal framework indicating the limitations on the exceptions made, as well as through disclosure of the fees and costs; as well as (c) providing to the Office through its article 22 reporting obligations information on and the reasons for making use of the exceptions. The Committee reiterates its request that the Government provide information on the reasons for authorizing the exceptions made to the prohibition against fee-charging. In addition, the Committee once again requests the Government to communicate information on the nature and outcome of consultations held with the most representative organizations of employers and workers concerning these exceptions, and on whether the exceptions are limited to certain categories of workers as well as to specified types of services provided by private employment agencies. The Government is also requested to provide information on the application of these exceptions in practice and on the manner in which it is ensured that jobseekers are aware of the amounts of the different types of fees and costs that private employment agencies may charge for both specific and unspecified “additional” services.

Articles 8, 10 and 14. Protection of migrant workers. Adequate machinery and procedures for the investigation of complaints, alleged abuses and fraudulent practices as well as supervision and remedies. With respect to the activities of PEAs in relation to mediating persons to work overseas, the Government indicates that PEAs are required to post a surety bond of 20,000 FJD with the Fijian Government for the purpose of assisting workers in the event that they fail to look after or repatriate Fijian workers mediated abroad. The Government reports that the Ministry of Employment has been working closely with the Fiji Police Force to investigate cases of bogus PEAs advertising to recruit local workers for deployment overseas. It adds that the Ministry has to date successfully prosecuted 3 bogus employment agencies operating illegally, and criminal sanctions were imposed. The Committee requests the Government to continue to provide updated information on the measures taken to prevent and sanction the operation of bogus employment agencies in the country. It also requests the Government to include in its next report reports of the inspection services, as well as updated information on the measures taken to eliminate fraudulent private employment agencies (Articles 10 and 14). It invites the Government to continue to provide information on the measures taken to provide adequate protection and prevent abuses of workers recruited in Fiji by private employment agencies for work abroad. Furthermore, the Government is also invited to provide information on any bilateral agreements concluded in this regard (Article 8(2)).

Articles 11 and 12. Measures to ensure adequate protection and allocation of responsibilities of private employment agencies and user enterprises. The Committee notes the Government’s general indication that the Ministry of Employment, under the Employment Relations Act and the 2008 Employment Agencies Regulations, ensures that Fijians are not exploited in respect to their terms and conditions of employment under their foreign contracts of service, to prevent trafficking and other unlawful forms of labour exploitation by individuals or operators. The Committee once again recalls paragraph 313 of its 2010 General Survey, in which it highlighted the need to have a clear legal framework in place to secure adequate protection and a clear allocation of responsibilities between PEAs and user enterprises in the areas enumerated in Articles 11 and 12 of the Convention, in both a domestic and cross-border context. The Committee therefore requests the Government to provide updated detailed information on all matters referred to in Article 11 of the Convention and on the manner in which responsibilities are allocated and effectively enforced between private employment agencies and the user enterprises in the areas described in Article 12.

Article 13. Cooperation between the public employment service and private employment agencies. Reporting and publication. In response to the Committee’s previous comments, the Government reports that the National Employment Centre Act 2009 requires the NEC to engage with reputable organizations in promoting employment growth and human resource development of unemployed persons registered with the NEC. It adds that from 2017 to 2020, a total of 518 memoranda of understanding were entered into between the private sector and government bodies resulting in 2,752 workplace attachments. The Committee notes that, in response to its previous comments, the Government reports that to date the Permanent Secretary for Employment has not made use of the possibility to pass sub-regulations under the 2008 Employment Agencies Regulations. The Government further indicates that the information and funds that PEAs must provide to the Ministry of Employment for authorization to operate as a PEA are published in the Fijian Government Gazette and local daily newspapers and must include, among other details, the schedule of fees to be charged. Noting that authorizations are valid for one year, the Committee invites the Government to indicate whether and how frequently the authorization information required is published upon renewal of authorization. The Committee also reiterates its request that the Government indicate whether the National Employment Centre cooperates with private employment agencies in research, dissemination and marketing of information, data and services.

Application of the Convention in practice. The Committee requests the Government to provide a general appreciation of the manner in which the Convention is applied, including information on the number of workers covered by the measures giving effect to the Convention. The Government is also requested to provide copies of decisions rendered by courts of law or other tribunals involving questions of principle relating to the application of the Convention (parts IV and V of the report form).

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

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.