Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Private Employment Agencies Convention, 1997 (No. 181) - Spain (Ratification: 1999)

The Committee notes the observations of the General Union of Workers (UGT) and the Trade Union Confederation of Workers’ Commissions (CCOO), received on 27 July and 11 August 2017, respectively. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 1 September 2017, supporting the observations made by the Spanish Confederation of Employers’ Organizations (CEOE). The Committee also notes the Government’s replies in this regard.

Article 13 of the Convention. Cooperation between the public employment service and private employment agencies. In its previous comments, the Committee requested the Government to indicate how, following prior consultations with the social partners, the arrangements are revised for cooperation between the public employment service and private employment agencies in the context of the framework agreement with employment agencies for collaboration with public employment services on the labour market insertion of jobseekers concluded in 2014 between the public employment service and employment agencies. The UGT reiterates its previous observations that the social partners did not participate in the development or implementation of the framework agreement, as their participation in the monitoring committee for the framework agreement was not stipulated. The UGT asserts that employment policies have not been set in relation to private employment agencies in consultation with the social partners, which has hampered them in performing their functions in the bodies in which they participate: the national employment system and the public employment service. The UGT also alleges that the social partners did not participate in the design and development of the tender documents for private employment agencies, nor in their monitoring and evaluation. The UGT also affirms that the social partners were not involved in determining the amount of the annual budget of the Public State Employment Service (SEPE) that would be allocated to public–private collaboration. The UGT indicates that it has finally received information from the Central Executive Committee of the SEPE, following repeated requests, in relation to the development of the framework agreement and its adoption, implementation and its extension until June 2018. In its observations, the CCOO alleges non-compliance with Article 13 of the Convention by the Government and reiterates its previous comments in which it alleged the systematic absence of social dialogue. In its response to the observations of the workers’ organizations, the Government indicates that it provided information on the framework agreement in the meeting of the National Employment System General Council on 24 July 2013. Regarding the observations of the CCOO, the Government adds that, since 2012, the European Union has been making recommendations to the Spanish Government, in the context of the European Semesters, regarding the need to strengthen public–private collaboration between the public employment service and private employment agencies, in order to improve the assistance provided to jobseekers. The Government indicates that, with a view to achieving this goal, it has been promoting the activities of private employment agencies to supplement the action of the public employment service. The Government adds that Royal Decree No. 1796/2010 of 30 December establishes the private employment agencies as collaborating entities of the public employment service, from which they may receive funding. The Government adds that the social partners were kept informed, via the Central Executive Committee, of the bidding process for the selection of the 80 employment agencies and other aspects of the framework agreement. The UGT indicates that little information was communicated to the social partners and many issues remain to be resolved, such as the content of the private contracts signed by private employment agencies and the regional governments of the Autonomous Communities, which address issues that were not contemplated in the framework agreement or set out in the list of conditions. The UGT indicates that the social partners are not aware of the placement objectives that must be met by private employment agencies, the payments made to private employment agencies, the selection criteria for unemployed persons whose placement will be managed by private employment agencies, the possibility for unemployed persons to choose between the public employment service or a private employment agency, the consideration of placement time and whether contracts are temporary or part time, the requirement to accept employment considered to be underemployment and the related consequences for the unemployed person. In their observations, the CEOE and the IOE assert that, in light of the current unemployment rate, the assistance of the private sector is decisive and urgent. They indicate that the implementation of the public–private collaboration model in employment placement is hampered by administrative constraints, as private employment agencies are seen as competitors by the public sector. As a result, private employment agencies are required to place unemployed persons with a full-time employment contract of at least six months within period of eight months. In its response, the Government indicates that private employment agencies can act independently but in coordination with the public employment service, and/or as collaborating entities through a partnership agreement. The Government specifies that, following the amendment introduced by Royal Legislative Decree No. 8/2014 of 4 July, private employment agencies do not need the authorization of the public employment service; it is sufficient for them to present a declaration to the competent public employment service before taking action. The private employment agencies must also carry out their activities in conformity with the provisions of the partnership agreement, providing the information required by the agreement and guaranteeing that the services funded by the public employment service are free-of-charge for workers and employers. The Committee recalls that, under Article 13 of the Convention, in accordance with national law and practice, consultations shall be conducted with “the most representative organizations of employers and workers” to establish and periodically review conditions to promote cooperation between the public employment service and private employment agencies. The Committee reiterates its request to the Government to indicate the manner in which, following prior consultation with the social partners, the arrangements are revised for cooperation between the public employment service and private employment agencies in the context of the 2014 framework agreement. The Committee also requests the Government to provide updated information on the status of the framework agreement, its content, the number of private employment agencies it covers and the conditions under which these agencies carry out their work at the level of the Autonomous Communities.

Legislative developments. The Committee notes the information provided by the Government in its report on the legislative changes introduced in relation to employment agencies and temporary work agencies under Act No. 18/2014, of 15 October, approving urgent measures for growth, competitiveness and efficiency; and Royal Decree No. 4/2015, of 29 May, approving the regulations covering temporary work agencies. The Committee requests the Government, taking into account the relevant provisions of the legislation in force (Act No. 18/2014 and Royal Decree No. 4/2015), to provide detailed information on the impact in practice of the legislative changes on the activities of private employment agencies, and particularly of temporary employment agencies. The Committee requests the Government to provide detailed information on the manner in which it is ensured that private employment agencies, including temporary work agencies, apply the principle of non-discrimination and provide services to their clients that facilitate their access to decent work, avoiding instances of underemployment and discrepancies between the remuneration received by temporary workers and that received by employees of the client enterprise.

Judicial decisions. The Committee notes with interest the court rulings provided by the Government related to the activities of private employment agencies and the labour rights of temporary workers. The Committee requests the Government to continue providing copies of court rulings relevant to the application of the principle of the Convention.