CONTRACT AND AGENCY LABOUR: ILO ACTION

1. CONTRACT AND AGENCY LABOUR:ILO ACTION Vladislav Egorov Senior Labour Law Specialist Social Dialogue, Labour Law and Labour Administration Department (DIALOGUE) International Labour Office DIALOGUE ICEM GLOBAL CONFERENCE ON CONTRACT AND AGENY LABOUR ISTANBUL (31 January – 1 February 2008)

2. Contents • Contract labour • Employment relationship • Agency work

3. Contract labour (to be continued) • Contract Labour is a labour market term used to describe situations whereby workers have difficulties in enjoying labour law protection because of the uncertainties in their employment status resulting from • Legal ambiguities in distinguishing civil law contracts from contracts of employment ? Civil law Labour law • The absence of any contractual arrangement (informal arrangements) or formal employer ? • Disguised employment whereby an employment relationship is intentionally presented as a civil law contractual relationship ?Civil Law? Labour law • Contract labour is a growing phenomenon all over the world widening the gap between labour market realities and labour legislation and its implementation

4. Contract labour (to be continued) • Since 1950th the problems related to Contract labour had repeatedly been discussed at different ILO forums and in 1995 it was placed on the agenda of the International Labour Conference (ILC) 1997 and 1998 with a view of possible adoption of a Convention and/or a Recommendation • The major items discussed by the ILC 1997 and 1998 were • Definition of Contract labour as a dependent work which is similar to the work performed within the employment relationship • Contract workers’ equal treatment with employees performing essentially similar work

5. Contract labour • Measures to ensure that Contract labour is not used for the purpose of denying rights and avoiding obligations under labour and social security laws (“disguised employment relationship”) • The ILC 1997 and 1998 failed to adopt an international instrument due to a number of significant conceptual and terminological differences including the following • Is there a “third category” of workers who are neither employees nor independent (self-employed) workers? • How to distribute employer responsibilities in the “triangular relationship”? worker ? • How to translate Contract labour in other languages? agency user

6. Employment relationship(to be continued) • 39 national studies carried out in 1999/2000 and the Meeting of Experts held in May 2000 showed the deficiencies affecting the scope (in terms of persons covered) of the regulations governing employment relationship. • The ILC 2003 General discussion on the Scope of employment relationship • Focused on • Ambiguous relationship • Disguised relationship • “Triangular” relationship • Concluded • The adoption of a Recommendation “is considered… as an appropriate response…”

7. Employment relationship(to be continued) • The Employment Relationship Recommendation, 2006 (No. 198) • Development and implementation of a national policy to review, clarify and adapt the scope of legislation to guarantee adequate protection within the framework of an employment relationship: • The nature and extent of the protection should be defined by national law and practice • In consultation with the most representative organizations of employers and workers • National policy should at least include measures to • Provide guidance on effectively establishing the existence of an employment relationship and on the distinction between employed and self-employed workers • Combat disguised employment relationships

8. Employment relationship(to be continued) • Ensure standards applicable to all forms of contractual arrangements, including those involving multiple parties • Provide effective access to appropriate, speedy, inexpensive, fair and efficient procedures and mechanisms for settling disputes regarding the existence and terms of an employment relationship • Ensure compliance • Provide training • With particular account to ensure effective protection to especially affected workers, including women workers, as well as the most vulnerable workers, young workers, older workers, workers in the informal economy, migrant workers and workers with disabilities • Determination of the existence of an employment relationship • Primacy of facts notwithstanding how the relationship is characterized by the parties

9. Employment relationship(to be continued) • Specific indicators of the existence of an employment relationship, including the fact that the work • Is performed personally for the benefit and under control of another party • Involves integration in the organization of the enterprise • Is carried out within specific working hours or workplace • Is of a particular duration and has a certain continuity • Involves the provision of tools, materials and machinery by the party requesting the work • Is periodically remunerated • … • Effective measures aimed at removing incentives to disguise an employment relationship

10. Employment relationship(to be continued) • Promotion of the role of collective bargaining and social dialogue • Monitoring and implementation • Mechanism for monitoring developments in the labour market and the organization of work, and for formulating advice • The most representative organizations of employers and workers should be represented, on an equal footing, in the above mechanism • Collection of information and research • Special attention to the transnational provision of services

11. Employment relationship(to be continued)  www.ilo.org • What we do: Labour standards • Recommendations • (R 198) • Employment Relationship Recommendation, 2006 (No. 198)

12. Employment relationship  www.ilo.org • Departments and Offices • Social Dialogue Sector: Social Dialogue, Labour Law and Labour Administration Department • Quick Links: Employment relationship • An annotated guide • European Parliament resolution of 11th July 2007 on modernising labour law to meet the challenges of the 21st century • Trade unions extend their membership to self-employed

13. Agency work (to be continued) • ILO Private Employment Agencies Convention, 1997 (No. 181) and its accompanying Recommendation No. 188 • Licensing or certification of PEA • Equality of opportunity and treatment in access to employment and non-discrimination • Protection of personal data of workers • No charge for the workers concerned • No child labor • Protection to migrant workers • Adequate protection of the workers concerned and allocation of responsibilities between PEAs and user enterprises in relation to • Freedom of Association and right of Collective bargaining

14. Agency work (to be continued) • Minimum wages • Working time and other working conditions • Statutory social security benefits • Access to training • Safety and health protection • Compensation in case of • Occupational accidents or diseases • Insolvency • Maternity and parental protection • Elimination of unethical practices of PEAs (R. 188) • A written contract of employment, where appropriate, or, as a minimum requirement, the workers should be informed of their conditions of employment before the effective beginning of their assignment (R. 188)

15. Agency work (to be continued) • No replacement of the workers of the user enterprises who are on strike (R. 188) • PEAs should not prevent their workers from being hired by the user enterprises • Relationship between PEAs and public employment services (R. 188) • Exchange of information • Joint projects

16. Agency work • 18 Ratifications of Convention No. 181 • Albania (1999) • Algeria (2006) • Belgium (2004) • Bulgaria (2005) • Czech Republic (2000) • Ethiopia (1999) • Finland (1999) • Georgia (2002) • Hungary (2003) • Italy (2000) • Japan (1999) • Lithuania (2004) • Moldova (2001) • Morocco (1999) • Netherlands (1999) • Panama (1999) • Portugal (2002) • Spain (1999) • Suriname (2006) • Uruguay (2004)