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

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Articles 1(1) (b) of the Convention. Employing workers with a view to making them available to user enterprises. The Committee notes with interest the adoption of the Employment Code Act, (No. 3 of 2019), which repealed the Employment Act, Cap. 268 of 1965. The 2019 Act regulates the establishment and functioning of private employment agencies (PEAs) in its Part VIII. In this respect, the Committee notes that section 118 of the 2019 Act regulates the operation of temporary work agencies who employ workers with a view to making them available to a third party. The Committee takes particular note of paragraph 7 of section 118 of the 2019 Act, which provides that a temporary work agency shall not interfere with the free transfer of an employee of the temporary work agency to a third party or another employer. Given that the activities of temporary work agencies involve making their employees available to a third party, the Committee requests the Government to clarify the cases in which section 118(7) of the 2019 Act is applied.

Article 3. Requirements for the operation of private employment agencies. The Committee notes that sections 107, et. seq. of the 2019 Act establish a licensing system for PEAs. The Committee requests the Government to provide concrete updated information on the content, scope and impact of measures taken to ensure that only licensed private employment agencies are able to operate in the country.

Article 5(2). Special services or targeted programmes to assist the most disadvantaged workers. The Government indicates that PEAs are allowed to provide services to all workers, including those that may be disadvantaged or marginalized. It adds that section 6 of the 2019 Act requires employers to comply with the provisions of the Persons with Disabilities Act of 2012, as well as the Mental Health Act of 2019 in relation to ensuring equality of opportunity and treatment. The Committee notes that, given the difficulties experienced by certain disadvantaged or marginalized groups in entering or remaining in the labour market, frequently due to discriminatory attitudes, Article 5(1) of the Convention requires Members to ensure that PEAs treat workers without discrimination. Article 5(2) provides that so-called “positive“ discrimination by PEAs that provide special services or targeted programmes designed to promote a level playing field and provide special support to persons belonging to certain groups in vulnerable situations in finding employment do not constitute discrimination within the meaning of Article 5(1) and should be permitted. In this respect, Paragraph 10 of the Private Employment Agencies Recommendation, 1997 (No. 188), indicates that PEAs should be encouraged to promote equality in employment through affirmative action programmes. By way of illustration, the special services and targeted programmes contemplated in Article 5(2) could include provision of job search training in sign language for deaf jobseekers, or special programmes providing vocational guidance or training in “soft” (life) skills that are tailored to the needs of young persons. The Committee thus reiterates its request that the Government provide information on whether private employment agencies provide special services or targeted programmes designed to assist the most disadvantaged workers in their jobseeking activities, as well as information on the type and impact of special services or targeted programmes implemented.

Article 7. Fee-charging. The Committee notes that pursuant to section 118(2)(a) of the 2019 Act, PEAs are prohibited from charging jobseekers fees for matching services rendered. However, section 118 (2)(a) of the 2019 Act provides that PEAs may charge the prospective employee fees for services relating to job seeking not exceeding 5 per cent of the employee’s first wages. Moreover, section 118(4) of the 2019 Act provides that a PEA may charge a prospective employee a registration fee not exceeding 500 fee units, 50 per cent of which shall be refunded to the prospective employee if the PEA fails to secure a job placement within three months of registration with the agency . The Committee notes that the 2019 Act does not provide a definition of the term “fee units” or any information to enable the Committee to determine the monetary value of the 500-fee unit charge. The Committee requests the Government to provide information on the exception from the general prohibition of charging fees set out in Article 7(1), indicating in detail the reasons justifying this exception, as well as the consultations held with employers’ and workers’ organizations in this respect. It also requests the Government to provide an explanation of the term “fee units” and the corresponding monetary value of this fee.

Article 8. Protection of migrant workers. The Committee notes the protections provided in the 2019 Act for migrant workers in relation to contracts concluded in Zambia for employment abroad (sections 31(1), 32 of the 2019 Act), as well as in relation to contracts concluded abroad for employment in Zambia (section 31(2) of the 2019 Act). It nevertheless notes that the 2019 Act does not contain specific provisions concerning employment relationships created through the activities of PEAs. The Committee therefore requests the Government to provide updated information on the manner in which Article 8 of the Convention is given effect, as well as to provide information on consultations held with the social partners in this regard. The Government is also requested to indicate whether it has concluded bilateral agreements to prevent abuses and fraudulent practices in the recruitment, placement and employment of migrant workers, and to provide copies of such agreements.

Article 10. Adequate complaint machineries and procedures. The Committee notes that section 119 of the 2019 Act requires PEAs to maintain registers and records and submit prescribed information to the Labour Commissioner. The Government indicates that, through the Ministry of Labour and Social Security (MLSS), mediations, investigations and inspections are carried out in relation to complaints received concerning the activities of PEAs. The Committee notes that Part XI of the 2019 Act sets out provisions governing general offences and the handling of complaints. In particular, the Committee notes that section 128(1)(a) of the 2019 Act provides that a person commits an offence if that person “induces or attempts to induce a person to be employed, or engages or attempts to employ any person by means of any force, threat, intimidation, misrepresentation or false pretence.” The Committee requests the Government to provide detailed updated information, including statistical data, concerning the nature, structure and functioning of the machinery and procedures established for the investigation and handling of complaints concerning the activities of all types of private employment agencies, including the number and type of complaints lodged, the violations detected and the penalties imposed.

Articles 11 and 12. Ensuring adequate protection for workers. Allocation of responsibilities between PEAs and user enterprises. The Government indicates that Articles 11 and 12 are adequately covered by the 2019 Act, the National Pension Scheme Authority (NAPSA) Act, the Workers Compensation Act, and the statutory instruments on minimum wages and conditions of employment for protected workers. The Committee notes that section 118(6)(b) of the 2019 Act provides that a PEA shall not assign an employee of the agency to a third party without ensuring that the employees of the agency enjoy similar wages and conditions of employment in comparison with the employees of the third party performing comparable tasks. The Committee notes that the Government does not provide information on the allocation of responsibilities between the temporary work agency and the user enterprise, as required under Article 12 of the Convention. The Committee requests the Government to indicate the specific measures taken to provide protection for employees of temporary work agencies in respect to all items enumerated in Article 11. In addition, the Committee requests the Government to indicate the manner in which responsibilities are allocated between temporary work agencies and user enterprises in all of the areas enumerated in Article 12.

Article 13. Cooperation between the public employment service and private employment agencies. The Government indicates that, based on section of the 119 of the 2019 Act, PEAs are to provide monthly returns to the Labour Commissioner. The returns, which typically contain information on notification of vacancies, number of vacancies filled and monthly turnover, are shared with the public when requested. Data contained in these returns is also used by the Ministry of Labour and other Government agencies for planning purposes and policy formulation, as well as to identify skills gaps across sectors. The Government also promotes cooperation between the MLSS and PEAs through meetings held to discuss general market practices and inspections. Noting that public employment services can play a critical role in improving labour market efficiency and recalling the campaign launched by the Office in May 2022 to promote the ratification of both, the Public Employment Services Convention, 1948 (No. 88), and Convention No. 181, the Committee invites the Government to consider ratifying Convention No. 88, as the most up-to-date instrument in the area of public employment services, which in turn complements the effective implementation of Convention No. 181. In addition, the Committee requests the Government to indicate which employers' and workers' organizations were consulted in this respect and to provide information on the conditions put in place to promote cooperation between the public employment service and private employment agencies. It further requests the Government to indicate the competent authorities to which this provision refers and provide examples of the information provided to them by the private employment agencies. Finally, it requests the Government to specify the information that is made publicly available and the intervals at which this is done (paragraph 3).

Article 14 and parts IV and V of the report form. Inspections. General application of the Convention. The Government refers to part VIII of the 2019 Act, which includes remedial measures in cases of violations. Such remedies include fines not exceeding 200,000 penalty units or imprisonment for a term not exceeding two years, or both. The Committee requests the Government to provide concrete updated information on how the supervision of the implementation of provisions to give effect to this Convention is ensured by the labour inspection service or other competent public authorities (Article 14, paragraph 2). It also requests the Government to provide concrete examples of the remedies imposed for cases of violations of the Convention by private employment agencies, 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 (Article 14, paragraph 3). It further requests the Government to indicate whether courts of law or other adjudicatory bodies have rendered decisions involving questions of principle relating to the application of the Convention, and to provide copies of these decisions where they exist (Article 14, paragraph 1 and part IV 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 Industrial and Labour Relations Act (No. 27) of 30 April 1993, Chapter 269 of the Laws of Zambia (as amended; ILRA), and the Employment Act (No. 57) of 1965, Chapter 268 of the Laws of Zambia (as amended).

Articles 1(1)(b) and 12 of the Convention. Employing workers with a view to making them available to user enterprises. Allocation of responsibilities. The Government indicates in its report that “user enterprises” are currently not recognized by Zambian labour laws. Employment agencies mediating employees are currently the only ones recognized. The Committee requests the Government to indicate if it envisages to permit employment agencies to employ workers with a view to making them available to a third party, that is, a “user enterprise” in the meaning of Article 1(1)(b) of the Convention.

Article 2(4) and (5). Prohibitions and exclusions. The Government indicates that no recourse has been made to the possibility to prohibit private employment agencies from operating in certain branches of economic activity or to exclude workers in certain branches of economic activity. The Committee notes, however, that section 3(a)–(c) of the Employment Act states that “recruitment” shall not include operations: (a) undertaken by or on behalf of employers who do not employ more than a limited number of employees; (b) for the engagement of personal and domestic servants and non-manual workers; and (c) undertaken within a limited radius from the place of employment. The Committee requests the Government to indicate whether private employment agencies are prohibited from operating in the areas listed under section 3(a)–(c) of the Employment Act.

Article 3. Governance of the operation of private employment agencies. The Government indicates that a license system for private employment agencies is in place. Moreover, according to section 56 of the Employment Act, employment agencies must acquire authorization from the Labour Commissioner before commencing their operations. The Committee requests the Government to provide practical information on the measures ensuring that only licensed private employment agencies are able to operate in the country.

Article 5(2). Special services or targeted programmes to assist the most disadvantaged workers. The Government reports that organizations employing persons with disabilities are given certain incentives, such as tax rebates. The Citizens Economic Empowerment Act (No. 9) of 19 May 2006 provides for an integrated broad-based and multi-faceted strategy, in possible partnership with private companies, and is aimed at substantially increasing meaningful participation of a targeted citizen, that is, a citizen who is or has been marginalized or disadvantaged. The Committee requests the Government to provide further information on whether private employment agencies provide special services or targeted programmes designed to assist the most disadvantaged workers in their jobseeking activities.

Article 6. Processing of personal data. The Committee notes that every employment agency is required by law to document all its transactions. These transactions are to be produced, when requested, during inspections. By practice, confidentiality is encouraged. The Government indicates that a Data Protection Bill is in its drafting stage which aims at governing the processing of personal information by private and public bodies and preventing unlawful use, collection, processing, transmission and storage of personal information of identifiable persons. The Committee requests the Government to specify the regulations currently in force and how they ensure that the processing of personal data of workers by private employment agencies is done in a manner that protects this data and ensures respect for worker’ privacy and is limited to matters related to the qualifications and professional experience of the workers concerned. Please also provide information on the content and the enactment of the Data Protection Bill and whether its provisions provide protection in line with the requirements of the Convention.

Article 7. Possibility of fee-charging to workers. The Government indicates that no exceptions are authorized to section 59 of the Employment Act concerning the prohibition of fee-charging to workers. The Committee notes, however, that the definition of “employment agency” in section 3 of the Employment Act provides that an agency may charge an entrance fee, a periodical contribution or any other charge, or derives, either directly or indirectly, any pecuniary or other material advantage from either the employer or the employee. The Committee requests the Government to clarify whether exceptions have been authorized for specified types of services provided by private employment agencies and, if so, which employers’ and workers’ organizations have been consulted in this regard.

Article 8(1). Protection of migrant workers. The Government states that labour laws that apply to national workers also apply to migrant workers. The Committee further notes that general provisions regarding the protection of migrants, including penal provisions for employers not complying with their obligations, are laid down in the Immigration and Deportation Act. The Committee requests the Government to provide further information on how adequate protection is ensured for migrant workers recruited or placed in its territory by private employment agencies, including penal provisions, and which employers’ and workers’ organizations have been consulted in this regard.

Article 10. Complaints. The Government states that investigations are usually done by the Labour Inspectors. The ILRA provides for general complaint procedures (section 108(2)). The Employment Act directs general complaints to the labour officer, explicitly encouraging the use of collective bargaining facilities (section 64(1)). The Committee requests additional information on the existing machinery and procedures, such as in the framework of labour inspections or otherwise, for the investigation of complaints concerning the activities of private employment agencies.

Article 11. Adequate protection for workers employed by private employment agencies. In its 2010 General Survey concerning employment instruments, the Committee highlighted the need to secure adequate protection in the areas enumerated in Article 11 of the Convention. The Committee requests the Government to provide information in the areas described in subparagraphs (c)–(j) of this provision.

Article 13. Cooperation between the public employment service and private employment agencies. The Committee recalls that Zambia has ratified the Employment Policy Convention, 1964 (No. 122), and that, under Convention No. 181, the public authorities retain final authority for formulating a labour market policy. It notes that private employment agencies provide information relating to vacancies notified and/or positions filled to the Ministry of Labour and Social Security (MLSS). The Committee requests the Government to provide an account of the measures taken to promote cooperation between the MLSS and private employment agencies. Please also supply examples of the information provided by private employment agencies and specify the information that is made publicly available and the intervals at which this is done.

Article 14 and application of the Convention in practice. The Committee requests the Government to provide examples of the remedies provided in cases of violations of the Convention. Please also provide a general appreciation of the manner in which the Convention is applied, by including, for example, 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.