Solicitud directa (CEACR) - Adopción: 2018, Publicación: 108ª reunión CIT (2019)

Convenio sobre las agencias de empleo privadas, 1997 (núm. 181) - Níger (Ratificación : 2015)

Article 1, paragraph (1), of the Convention. Types of private employment agencies. The Committee notes the Government’s first report indicating that since 1996 private employment agencies in the sense of Article 1, paragraph (1)(a) and (b), of the Convention and regulated by Decree No. 96-696/PRN/MFPT7E (Private Mediation Agency (PMA) Decree) in conjunction with section 15 of the Labour Code and Decree No. 96-412/PRN/MEF/P (Temporary Work Agency (TWA) Decree) respectively are operating in the country. The Government also makes references to agencies whose commission is calculated by a percentage of the commission. However, it is not clear whether this relates to agencies performing other services relating to jobseeking not subsumable under the PEA or the TWA Decree. The Committee asks the Government to indicate whether private employment agencies exist offering other services relating to jobseeking in the sense of Article 1, paragraph (1)(c), of the Convention.

Article 2, paragraph 4. Prohibitions and exclusions. The Committee notes that based on section 2 of the TWA Decree, TWAs are not to engage in “certain works requiring a medical surveillance”. As further information as to whether private employment agencies are prohibited from operating in respect of certain categories of workers or excluded branches of economic activity has not been received, the Committee asks the Government to define “certain works requiring a medical surveillance” and to indicate whether it has made further recourse to this paragraph, and, which employers’ and workers’ organizations have been consulted.

Article 3. Legal status and conditions of operation. The Committee notes that the establishment of both PMAs and TWAs, prerequisite a licence for which the criteria differ; the application process is regulated by additional Ministerial Decrees as referred to under section 6(2) of the PMA Decree and section 4 of the TWA Decree. As these decrees are not available to the ILO, the Committee asks the Government to provide copies of laws or regulations giving effect to the provisions of the Convention, including the Ministerial Decrees referred to in section 6(2) of the PMA Decree and section 4 of the TWA Decree.

Articles 4, 11, subparagraphs (a) and (b), 12, subparagraph (a). Freedom of association and collective bargaining. The Committee notes that section 183 of the Labour Code provides that persons exercising same, similar or related professions are to have the same rights to freedom of association. Furthermore, based on section 30 of the TWA Decree, a worker made available to a user enterprise is to choose whether worker organizations in the TWA or in the user enterprise can render support regarding the application of the TWA Decree. The Committee requests the Government to provide further information, including practical examples, on the measures taken to give effect to Article 4, how in this regard the rights of workers made available to user enterprise are protected (Article 11, subparagraphs (a) and (b)) and the responsibilities are determined and allocated between TWAs and user enterprises (Article 12, subparagraph (a)).

Article 5, paragraph (1). Equality of opportunity and treatment. The Committee recalls its 2017 comments with regard to Niger’s implementation of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), noting that gender-based discrimination as well as discrimination based on social origin remained prevalent in practice. The Committee requests the Government to indicate the measures taken or envisaged to ensure that all private employment agencies treat workers without discrimination and respect equality of opportunity and treatment in access to employment as well as to specific occupations. In particular, the Committee invites the Government to provide information on measures taken or envisaged to ensure that all private employment agencies respect the principle of gender equality and equality of opportunity indifferent of descent in employment and occupation.

Article 5, paragraph (2). Special services and targeted programmes. The Government indicates the active labour market measures implemented by the National Employment Service with ILO support. As information as to whether private employment agencies participate in these measures is not available, the Committee asks the Government to indicate whether PEAs participate in special services or targeted programmes designed to assist the most disadvantaged workers in their jobseeking activities.

Article 6. Processing of workers’ personal data. The Committee notes the information provided by the Government concerning the collection and processing of jobseekers’ personal data. As information on the legal framework governing the processing of jobseekers’ personal data is not available, the Committee requests the Government to provide specific information on the legal framework and the manner in which workers’ personal data is protected.

Articles 7 and 8. Fee charging. Migrant workers. The Committee notes that based on section 12 of the PMA Decree, PMAs are prohibited to charge fees to jobseekers. However, based on section 41 of the Labour Code, this prohibition only applies to working relationships within the Republic of Niger or, in a cross-border context if at least three months of the work are performed in the Republic of Niger. The TWA Decree does not bar charging fees to jobseekers. Information on the existence of private employment agencies in the sense of Article 1, paragraph 1(c) is not available. The Committee notes that in 2015 a bilateral agreement has been concluded with the Kingdom of Saudi Arabia, requiring the authorized Saudi Arabian private employment agencies to ensure labour rights of Nigerian workers and to familiarize them with the customs and language of their host country. The Committee asks the Government to provide detailed information on the measures taken or envisaged to ensure that no private employment agencies placing or recruiting persons in the Republic of Niger charge directly or indirectly for their services. It also requests the Government to provide information on the mechanisms and procedures in place to enforce prohibitions against fee charging (Article 7). It further asks the Government to indicate the measures adopted, both within its jurisdiction and, where appropriate, in collaboration with other Members, to provide adequate protection for and prevent abuses of migrant workers recruited or placed in Nigerian territory by private employment agencies and which organizations of employers and workers have been consulted in this regard. Furthermore, the Government is also asked to indicate laws or regulations which provide for penalties, including prohibition of those private employment agencies which engage in fraudulent practices and abuses (Article 8(1)). The Government is further asked to provide a copy of the bilateral agreement signed and to state whether further agreements are envisaged (Article 8(2)).

Article 9. Measures ensuring that child labour is not used or supplied. The Committee refers to its previous comments in regard to the implementation of the Minimum Age Convention, 1973 (No. 138), and the Elimination of the Worst Forms of Child Labour Convention, 1999 (No. 182), particularly in regard to the enslavement of children, and forcing children to beg or to perform hazardous work. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that child labour is neither recruited nor supplied by private employment agencies.

Article 10. Adequate complaint machineries and procedures. The Government refers to the general machinery to investigate complaints of workers and employers in the context of TWAs. The Committee requests the Government to provide detailed information on the structure and operation of the mechanisms and procedures for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of all types of private employment agencies.

Article 11, subparagraphs (c) to (h) and (j). Ensuring adequate protection for workers. The Government’s report refers to the general responsibilities of employers. The Committee notes that information on the underlying legal framework is not available and that these general references do not address the protection of employees employed by temporary work agencies, as they do not take into account the special characteristics of “triangular” employment relationships. The Committee requests the Government to provide information on the measures taken to ensure protection for workers in the areas set out under subparagraphs (c) to (h) and (j) of Article 11, including detailed information on the impact of such measures in practice. It also asks the Government to provide information on the manner in which responsibilities are allocated between PEAs and user enterprises in all areas set out in Article 12, and to provide updated detailed information on developments in relation to amendments of the existing legislative framework.

Article 12, subparagraphs (d) to (g) and (i). Allocation of responsibilities between private employment agencies and user enterprises. Based on section 28 of the TWA Decree, workers made available to user enterprises are to benefit in regard to the areas under Article 12, subparagraphs (d) to (g) and (i) are to be regulated from collective agreements or company-level agreement. The Committee asks the Government whether collective agreements exist providing for the allocation of responsibilities in regard to Article 12, subparagraphs (d) to (g) and (i) between private employment agencies and user enterprises in all areas set out in Article 12, and to provide updated detailed information on developments in relation to amendments of the existing legislative framework.

Article 13. Effective cooperation between the public employment service and private employment service. The Committee notes that based on section 3 of the PMA Decree and section 6 of the TWA, private employment agencies are to provide monthly information to the public employment services. In regard to TWAs, a Ministerial Decree is to regulate the details of the reporting obligation. The Committee requests the Government to communicate detailed information on the manner in which the conditions to promote cooperation between the public employment agencies and private employment agencies are formulated, established and reviewed as well as information on consultations with employers’ and workers’ organizations in this regard. In addition, it requests the Government to provide a copy of the Ministerial Decree regarding the obligations for TWAs and examples of the information that private employment agencies provide to the public employment service.

Article 14. Inspections. The Committee requests the Government to provide updated detailed 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. It also requests the Government to provide examples of the remedies foreseen for 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.

Practical application. The Committee notes that licences of the 53 private employment agencies are partly expired since 2009 and that others are undergoing a renewing procedure since 2014 or validation since 2015. The Committee thus requests the Government to provide up-to-date information on the number of private employment agencies operating in the country and a general appreciation of the manner in which the Convention is applied in the Republic of Niger, including extracts from inspection reports and, where such statistics exist, information on the number of workers covered by the measures giving effect to the Convention, the number and nature of infringements reported and whether courts of law or other tribunals have given judgments involving questions of principle relating to the application of the Convention (Parts IV and V of the report form).