Demande directe (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 181) sur les agences d'emploi privées, 1997 - France (Ratification: 2015)

Autre commentaire sur C181

Demande directe

2022
2018

Afficher en : Francais - EspagnolTout voir

Articles 1(1)(c), 3 and 6 of the Convention. Provision of other services relating to jobseeking. The Committee notes the Government’s indication that it has not availed itself of Article 1(1)(c) of the Convention. The Committee notes this information, which replies to its previous request.

Processing of personal data. With reference to the processing of personal data (Article 6 of the Convention), the Government indicates in its report that Order No. 2018-1125 of 12 December 2018, published on 13 December 2018, completes at the legislative level the process of bringing the national legislation into conformity with the European Union (EU) General Data Protection Regulation (GDPR) and Directive 2016/680 of 27 April 2016, know as the “Law Enforcement Directive”, which applies to data files in relation to criminal justice. The Government also refers to Decree No. 2019-536 of 29 May 2019 issued under Act No. 78-17 of 6 January 1978 respecting information technology, data files and freedoms, which entered into force on 1 June 2019. The Decree adapts certain rules and procedures of the National Information Processing and Freedoms Commission (CNIL) and specifies the rights of the persons concerned. The Government adds that the CNIL is in the process of preparing a guide intended to help recruitment professionals respect data protection, within the meaning of the GDPR. Moreover, a public consultation has been launched to gather the views of professionals in the sector. The Committee requests the Government to provide updated information on the outcome of the public consultation, as well as a copy of the guide prepared by the National Information Processing and Freedoms Commission. It also requests the Government to continue providing information on the measures adopted or envisaged for the protection of workers’ personal data.

Article 3(2). Conditions governing the operation of private employment agencies. The Government refers to section L.1251-45 of the Labour Code, which provides that the activity of temporary work entrepreneur can only be exercised following a declaration to the administrative authority and after obtaining a financial guarantee, in accordance with section L.1251-49 of the Labour Code. A declaration is also required before a temporary work entrepreneur moves the headquarters of the enterprise or opens branches, agencies or related offices. Moreover, any temporary work enterprise that ceases operation is required to provide a declaration to that effect to the administrative authority. A temporary work entrepreneur is liable to a fine of €3,750 for operating without having submitted the declarations envisaged in section L.1251-45 of the Labour Code. The Government indicates that a repeat offence is punishable by a fine of €7,500 and six months imprisonment. Moreover, the tribunal can prohibit the activity of temporary work entrepreneur for a period of between two and ten years. The Government specifies that the required declaration is completed through a regulated administrative form (the “cerfa form”) addressed to the competent labour inspection service, or the Departmental Directorate of Employment, Labour and Solidarity (DDETS) and the Departmental Directorate of Employment, Labour, Solidarities and Population Protection (DDETS-PP). The Committee notes this information, which replies to its previous request.

Article 4. Right to freedom of association and right to bargain collectively. The Government indicates that specific rules for temporary work relating to the representation of the personnel are contained in Book III of the second part of the Labour Code and that branch agreements specify the procedures for the exercise of freedom of association and the representation of the personnel taking into account the intermittent nature of the employment. The Committee requests the Government to provide examples of branch agreements setting out the procedures for the exercise of the right to freedom of association and the right to bargain collectively by temporary workers in user enterprises.

Article 5(2). Special services and targeted programmes designed to assist the most disadvantaged workers. The Government indicates that the Board of Administration of Pôle emploi is competent to determine the conditions for the use of specialized service providers in conformity with the guidance set out in the tripartite agreement, in accordance with section R.5312-6 of the Labour Code. The Government adds that there is a category of temporary work agencies known as “integration” agencies, the exclusive function of which is to facilitate the vocational integration of eligible persons through an integration programme within the framework of agreements with the State. Moreover, the employers’ organization representing private employment agencies, Prism’emploi, signed a national framework agreement with Pôle emploi on 2 May 2021 to improve the return to employment of jobseekers and temporary employees. The Committee notes that, as part of the extension of an undertaking concluded in 2018 with the Secretariat of State for persons with disabilities, a branch agreement on the integration of such persons in the temporary work sector was concluded on 19 July 2019. An experiment is also planned of specific recourse to temporary work for persons with disabilities to facilitate their return to or retention in employment. The Committee requests the Government to continue providing detailed and updated information on the nature and extent of the special services and targeted programmes implemented by private employment agencies to help the most disadvantaged workers seek jobs.

Article 7(2) and (3). Exceptions to the principle of services provided free of charge. The Government previously indicated that section L.5321-3 of the Labour Code enumerates two exceptions to the principle of the free provision of services: artistic agencies and sports agencies. The Committee notes the Government’s indication that there is no exception to the principle of the provision of services free of charge in the regulations respecting temporary work and that Prism’emploi makes this a condition of membership of the employers’ organization through a code of ethics that has to be signed by prospective members. The Committee notes this information, which replies to its previous request.

Article 8(1) and (2). Protection of migrant workers. TheGovernment indicates that the provisions in the Labour Code regulating work by migrants also apply to temporary work agencies. It adds that, as an exception, the temporary employment termination benefit envisaged in sections L.1251-32 and L.1251-33 of the Labour Code is not payable to employees posted to France by a temporary work agency when they are covered by permanent employment contracts in their country of origin. This benefit is intended to compensate for the precarious nature of the employment of temporary workers. In contrast, the benefit is payable to a posted temporary worker who does not have a permanent employment contract. There are no other exceptions to the provisions respecting temporary work agencies that are specifically applicable to posted employees. The Government also refers to Decree No. 2007-1739 of 11 December 2007, the provisions of which were subsequently codified as sections R.1261-1 et seq. of the Labour Code, noting that it was the subject of an opinion issued by the Higher Council for the Prevention of Occupational Risks and the National Commission on Occupational Safety and Health in Agriculture, two advisory bodies which include representatives of representative trade unions and employers’ organizations. The bilateral agreements that are concluded between France and other Member States are intended to improve cooperation in relation to the transnational posting of workers and the prevention of undeclared work, covering all abuses and fraudulent practices, including in relation to recruitment, placement and employment. Prism’emploi also signed a national agreement to combat illegal work on 10 May 2006, which is intended both to prevent and combat false postings (fraud relating to the establishment in France of foreign temporary work agencies to evade labour regulations and social security registration) and the employment of undocumented foreign nationals. In this connection, regular contacts are maintained with the Ministry of the Interior concerning cases of stolen identity to prevent the establishment of “networks”. The Committee requests the Government to provide updated information on the bilateral agreements concluded to prevent abuse and fraudulent practices in relation to recruitment, placement and the employment of migrant workers, and on the impact of these agreements.

Article 9. Prohibition of child labour. The Government indicates that the legal framework in France includes a sufficiently solid body of legal provisions to ensure the protection of children, including children engaged by modelling agencies. In France, section L.4153-1 of the Labour Code provides that children may not be employed before they reach the age of 16 years (15 years for apprenticeships). The Government adds that certain occupations nevertheless benefit from a derogation from the minimum age for admission to employment, which is subject to strict rules. Accordingly, under the terms of section L.7124-1 of the Labour Code, children under the age of 16 years may be lawfully engaged or perform for a theatrical, cinema, radio or television company as models, or in an enterprise or association established for participation in video game competitions. This list has recently been extended by Act No. 2020-1266 of 19 October 2020, known as the “Studer” Act, to the commercial exploitation of images of these children on on-line platforms. The Decree to be issued under the Act is currently being prepared. The employment of children in the activities covered by section L.7124-1 is subject to prior authorization issued by the administrative authority (the prefect of the department), which can be withdrawn at any time. The Committee notes this information, which replies to its previous request.

Article 10. Machinery and procedures for the investigation of complaints, alleged abuses and fraudulent practices. The Committee notes that the Government has not provided any information on this subject. The Committee therefore once again requests the Government to provide a description of the procedures and the machinery for the investigation of complaints concerning the activities of private employment agencies.

Article 11(a), (b), (e) and (j). Measures to ensure adequate protection for workers employed by private employment agencies. The Government recalls in its report that France is bound to comply with Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work. It adds that temporary employees are only legally linked to the temporary work agency, and that the user enterprise is responsible for the conditions in which the work is performed, including those relating to hours of work, night work, weekly rest, public holidays, health and safety and work by women, children and young workers (section L.1251-21 of the Labour Code). The Government indicates that many occupational branch agreements have been signed by the organization representing temporary work agencies, which is now Prism’emploi, and by most unions representing employees. These agreements cover several subjects, including: social protection, supplementary retirement benefits and social insurance; occupational safety and health; and freedom of association and staff representation. Extended occupational agreements are applicable to all temporary work agencies. Agreements that have not been extended are only applicable to enterprises that are members of Prism’emploi, the organization that concludes the agreements. Moreover, several laws have been adopted to accompany the development of temporary work, including Order No. 2017-1387 of 22 September 2017, under the terms of which a collective agreement or an extended branch agreement covering a user enterprise may set the total length of the assignment contract, the number of renewals permitted, the methods of calculating the waiting period between two contracts and exceptions to this waiting period. The Committee notes the information provided by the Government on measures to ensure adequate protection for the workers employed in relation to social protection, supplementary insurance, maternity and adoption guarantees and the exercise of freedom of association. For example, when there is no union chapter in the enterprise or establishment, each temporary employee receives, on their first assignment and then once a year, an information note setting out the procedures for the exercise of freedom of association. The note is completed by each trade union represented in the enterprise, on the basis of a form jointly prepared at the level of the occupation. In the absence of a union chapter in the enterprise or establishment, the employer provides to temporary employees, on the occasion of their first assignment and at least once a year thereafter, a document prepared by the joint commission in the branch in which the enterprise or establishment operates, which includes a list of the collective occupational agreements of which the enterprise is required to have a copy at the disposal of employees, as well as the procedures for referring matters to the competent joint occupational commission and the coordinates of its member organizations. The Committee requests the Government to continue providing updated information on the application in practice of the provisions which ensure adequate protection for workers employed by private employment agencies, particularly in relation to freedom of association and collective bargaining.

Article 12(a), (b) and (i). Responsibilities of private employment agencies and user enterprises. The Committee notes the information provided by the Government, which replies to its previous request.

Article 13(1), (3) and (4). Cooperation between the public employment service and private employment agencies. The Government indicates that the relations between Pôle emploi and private placement agencies are of a commercial nature and are subject to the law respecting public procurement. The subcontracting contracts therefore determine the follow-up and information exchange arrangements. The arrangements for recourse to public procurement are also referred to the Board of Administration of Pôle emploi, the composition of which includes ten representatives of the social partners out of 13 members. The Committee notes with interest that Prism’emploi and Pôle emploi signed a national framework agreement in May 2021 for a period of three years for the joint mobilization of their resources and expertise to improve the return to employment of jobseekers and temporary employees, address the shortage of skills and develop territorial synergies between the two networks. The temporary work sector currently has six unions engaged in social dialogue as a result of the representation measures adopted by the Ministry of Labour. The Committee had previously noted that, under the terms of section R.5323-7 of the Labour Code, private placement operators regularly provide the Prefect with statistical data on their placement activities. The Committee once again requests the Government to provide a copy of the statistical data supplied by private placement operators on their placement activities. It also reiterates its request to the Government to provide information on the effect given in practice to the measures adopted to promote cooperation between the public employment service and private employment agencies.

Article 14(2) and (3). Adequate remedies. The Committee notes the documents provided by the Government, including the document on the execution and performance of the services of Activ emploi and Activ project and its technical annex, date 2015, and the document on ensuring the conformity of the services provided to jobseekers in 2015 and 2016, which examines in detail one aspect of the quality control of these services. The Government indicates that, in quantitative terms, 0.64 per cent of services requested have to be provided again due to quality issues. Moreover, since 2017, there have been 28 organizational audits (measures to combat fraud, continuous improvement mechanisms, etc.) in all the main establishments of Pôle emploi. The Committee requests the Government to continue providing information on the quality control of the services provided by private placement operators, including organizational audits, and on the remedies applied in the event of contraventions.

Application of the Convention in practice. The Committee notes the Government’s indication that in 2019 Pôle emploi recorded 636,000 jobseekers covered by services contracted out to private placement operators. The Committee requests the Government to continue providing general information on the manner in which the Convention is applied, including extracts from the reports of the inspection services and information on the number of workers protected by the measures giving effect to the Convention, as well as the number and nature of any contraventions reported. It also requests the Government to provide copies of decisions handed down by the courts or other tribunals on questions of principle relating to the application of the Convention.