Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 181) sur les agences d'emploi privées, 1997 - Macédoine du Nord (Ratification: 2012)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year.

New legislation. The Committee notes that the Government reports that a new law on Private employment agencies was adopted in June 2019 and that existing agencies have been given six months to re-register and to prove that they meet the requirements of the new law. The Committee requests the Government to provide information on the number of temporary employment agencies registered in the country following the adoption of the new Law on private employment agencies.

Article 1(1)(b) and (c) of the Convention. Employing workers with a view to making them available to user enterprises and provision of other services. The Committee had previously requested the Government to provide information on the activities of youth cooperatives. The Committee notes the Government’s information that in accordance with the legislation in force, student cooperatives are no longer legal and that they were transformed into private employment agencies. The Committee requests the Government to provide further information on the legal provisions regulating the transformation of student cooperatives into private employment agencies as well as their operations. The Government is also requested to provide information on the number of such cooperatives that were transformed into private employment agencies.

Article 2. Scope.  The Committee had previously requested the Government to indicate whether the Convention applies to all categories of workers and all branches of economic activity or whether recourse has been made to Article 2(4). The Committee notes the Government indication that the Convention applies to all categories of workers and economic activities. The Government further indicates that those entities that hold a licence authorizing them to provide temporary employment services may not provide services outside the territory, whereas those with a licence to provide mediation services may provide services within and outside the territory of North Macedonia. The Government indicates, however, that the provisions of this Law does not apply in cases of mediation for employment abroad of students during their studies. The Committee notes this information, which responds to the points raised previously.

Article 3. Legal status and operation.  The Committee notes that pursuant to Article 6, paragraph (7) of the new Law on Private employment agencies, a private employment agency may not start to operate before registering in the Central Register of the Republic of North Macedonia and obtaining the corresponding license issued by the Ministry competent for labour-related issues. Section 7 of the Law determines the types of licences that can be issued by the Ministry. These are: licenses for temporary employment, licenses for mediation for employment in the country, licenses for mediation for employment abroad and licences for mediation or employment in the country and abroad. The law establishes the requirements for the different types of licenses issued for temporary employment agencies and mediation for employment agencies. In the case of temporary employment agencies, the requirements concern the maximum number of temporary agency workers with which the agency may conclude contracts as well as the amount of the bank guarantee, the size of the premises and the minimum number of employees that the agency should have. In the case of mediation for employment agencies, the requirements concern the size of the premises of the agency and the minimum number of employees necessary for the agency to operate. The law provides that an employment agency may simultaneously have a licence for temporary employment and a license for mediation for employment. But the agency shall meet the requirements to obtain both licences separately. The Committee notes that section 14 of the new law provides that the licenses are issued with a validity of two years, with the possibility of extension. Subparagraph 3 of section 14 provides that after two consecutive extensions, the license shall be issued with a validity of five years, with the possibility of an extension of five years. The Committee notes that subparagraph 7 of this same section provides that the license may be transferred in whole or in part to another person. The bank guarantee may not be withdrawn for the period of validity of the licence. The Committee requests the Government to provide information on the number and type of licenses issued and on any challenges or obstacles encountered in the implementation of the procedure in practice.

Article 4. Right to freedom of association and the right to collective bargaining.  The Committee notes that in reply to its previous comments, the Government indicates that pursuant to section 23 of the new Law on Private Employment Agencies, temporary agency workers have the right to participate, with their own representatives, in the bodies that represent workers, which, in accordance with the regulations, are established in the undertaking, in the same way as if the workers employed directly by the user enterprise. The Committee notes this information, which responds to the points raised previously.

Article 5(2). Special services or targeted programmes. The Committee requests the Government to indicate how private employment agencies provide special services or targeted programmes designed to assist the workers in disadvantaged situations in their jobseeking activities particularly, in the framework of section 15 of the Law on Prevention and Protection against Discrimination.

Article 6. Processing of personal data. The Committee notes that the Government’s report contains no information in this regard. The Committee therefore reiterates its request that the Government provide information on how it is ensured that the processing of personal data of workers by all private employment agencies is limited to matters related to the qualifications and professional experience of the workers concerned and any other directly relevant information.

Article 7. Fees.  The Committee notes that pursuant to section 25 of the Law, the private employment agency may only charge fees to the user employer. They cannot charge fees or costs to workers. Furthermore, section 34 (2) provides that the private employment agency shall mediate by collecting reimbursement of mediation services by the employer. The Committee recalls that the Government had previously indicated that a foreigner could be granted permission to operate a fee-charging temporary employment agency only if there is reciprocity in performing the same mediation activities for temporary employment with the foreigner’s native country. The Committee notes in this respect that the Government indicates that only private employment agencies and the Employment Service Agency of the Republic of North Macedonia may perform mediation services for employment in the country. The Committee requests the Government to indicate whether it is still possible, after the adoption of the new Law on Private employment agencies, for foreigners to operate temporary employment agencies that charge fees to workers.

Article 8(1). Protection of migrant workers.  The Committee previously noted that based on the Law on Employment and Insurance in Case of Unemployment, “labour mediation abroad” is performed on the basis of a bilateral international agreement or treaty or on the basis of a previously signed agreement between the mediation agency and an enterprise that will employ the worker. The agreement has to lay down the conditions and the manner related to the employment mediation and the work of the person referred to employment abroad. The Committee further notes that pursuant to section 38 of the new Law on temporary employment agencies a private employment agency which holds a license for mediation for employment abroad shall be obliged to submit data for the persons assigned for employment abroad to the Employment Service Agency of the Republic of North Macedonia, no later than the fifth of each month. The Committee notes, however, that the Government does not reply its previous request. The Committee requests the Government to provide information on whether a domestic or foreign temporary employment agency with a licence for mediation and a foreign or domestic employer can enter into an agreement without a pre-existing bilateral agreement or treaty between Republic of North Macedonia and the respective foreign country. Please also provide information on how adequate protection is ensured for migrant workers recruited by domestic private employment agencies, including penal provisions, and which employers’ and workers’ organizations have been consulted in this regard.

Article 9. Prohibition of child labour.  The Committee had requested the Government to indicate the legal and practical measures taken or envisaged to ensure that child labour is not used or supplied by private employment agencies. The Government refers to section 39 of the Law on Private employment agencies according to which the private employment agency which holds a license for mediation for employment may not “use child labour in the mediation for potential employment, and violate the dignity and morality of the persons assigned for potential employment.” The Law also provides that for all the rights related to labour relations which are not regulated with this law, the provisions of the general regulations on labour relations shall apply. The Committee requests the Government to indicate how it is ensured that child labour is not provided by temporary employment agencies to enterprises. The Government is also requested to provide any information available on cases of private employment agencies under North Macedonia licence that have been involved in child labour in the country or abroad.

Article 10. Machinery for investigation of complaints, alleged abuses and fraudulent practices.  The Committee notes that the State Labour Inspectorate monitors the application of the law and that the Ministry competent for labour-related issues monitors the operations of the private employment agencies. Non-compliance with the law is a reason for revoking licenses, for both types of agencies. The State Labour Inspectorate prepares quarterly reports on the performed controls, which are published on the website of the Ministry competent for labour-related issues and on the website of State Labour Inspectorate. The Committee requests the Government to provide information on the existing machinery and procedure before the State Labour Inspectorate or otherwise for the investigation of complaints concerning the activities of private employment agencies. The Government is requested to provide information on the number and status of complaints dealt by the State Labour Inspectorate related to the operations of private employment agencies.

Articles 11(c)–(j) and 12. Measures to ensure adequate protection and allocation of responsibilities of temporary work agencies and user enterprises.  The Committee notes that section 19 of the new Law on Private employment agencies provides that the user employer should grant temporary agency workers the same working and employment conditions as those ensured to those workers recruited directly by the user employer. Pursuant to section 20, the rights arising from general labour regulations and occupational safety and health also apply to temporary agency workers. The section also provides that mediation for employment in the country is performed on the basis of a previously concluded agreement between the private employment agency with a mediation license for employment in the country and the user–employer. The agreement shall obligatorily contain the following elements: name of the user employer, responsible person within the user enterprise; conditions of employment in accordance with the general labour regulations (working hours, salary, method of payment and working conditions); the rights, obligations and responsibilities of the private employment agency and the user employer. This concerns the basic salary, right to training occupational safety and health as provided in section 30. Section 29 sets forth the content of the contract that the workers conclude with the user employer which include working hours and amount of salary as well as the obligations of the private employment agency towards the workers during the period of his or her assignment to the user-employer. Section 30 concerns the right to the same basic salary as other workers directly hired by the user employer doing equal or similar jobs. The private employment agency should be adequately informed of the basic salary of a temporary agency worker. Temporary agency workers should also enjoy equal opportunities with respect to training, and occupational safety and health measures. The Committee notes that no information is provided concerning social security benefit, compensation in case of occupation accidents or diseases, compensation in case of insolvency and protection of workers claims and maternity protection and benefits and parental protection and benefits, that are also provided for in Article 11 of the Convention. The Committee requests the Government to provide information in detail on the application in practice of all points referred to in Article 11(c)–(j) of the Convention. The Government is also requested to provide additional information on how responsibilities are allocated between temporary work agencies and the user enterprises in the areas described in Article 12.

Article 13. Cooperation between the public employment service and private employment agencies.  The Government indicates that, according to Article 4 of the Law on Private Employment Agencies, private agencies should enjoy equal treatment as the Employment Service Agency of the Republic of Macedonia (ESARNM) in the employment mediation services and the access to the database of unemployed persons kept by the ESARNM for the purpose of selection of candidates for employment. The ESARNM and the private employment agencies exchange information about job openings and assignment of unemployed persons for the purpose of employment. This exchange of information is done electronically, based on a previous agreement. The Committee requests the Government to provide practical information on whether there is an established procedure for the cooperation between the ESARNM and private employment agencies and to indicate which employers’ and workers’ organizations were consulted. Please also provide examples of the information that private employment agencies provide to the ESARNM and specify the information that is made publicly available and the intervals at which this is done.

Article 14. Adequate remedies and practical application of the Convention.  The Committee requests the Government to provide examples of the remedies provided in 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.