Technical Note 2: Instruments Concerning Public Employment Services

FIFTH MEETING OF THE SRM TWG

(23-27 SEPTEMBER 2019)

EXAMINATION OF INSTRUMENTS CONCERNING EMPLOYMENT POLICY AND PROMOTION

Technical Note 2: Instruments concerning public employment services

 There are two instruments in the initial programme of work concerning the regulation of public employment services:

- Employment Service Convention, 1948 (No. 88) - Employment Service Recommendation, 1948 (No. 83)

 Current status of instruments: Convention No. 88 and Recommendation No. 83 were considered to be instruments with interim status by Cartier Working Group

 Possible action to be considered: classification of Convention No. 88 and Recommendation No. 83 as up-to-date

16 August 2019

2018

ILO regulation of public employment services : Chronology of developments

1 2 3 5

ILC general Governing discussion: Body C. 88 C.2 adopted C.88 & R.83 decided that confirmed adopted revision of as up to C.88 was date and not desirable useful

4 6 7

1919 1948 1948 Ventejol Cartier SRM TWG 1994 1979 & 1987 1996 & 1999 2019

Examination by SRM TWG of status of C. 88 & R. 83 instruments in classified as C.88 & R.83 the initial instruments to classified as programme of be promoted interim work on a priority concerning basis employment policy and promotion

ILO regulatory approach to public employment services

Since the founding of the ILO, employment services have been considered to be one of the major measures to implement employment and labour market policies. Notably, the ILO Declaration of Philadelphia refers to the obligation to further programmes to achieve full employment and the raising of standards of living. 1 Adopted at the first session of the Conference, the Unemployment Convention, 1919 (No. 2) provides for the establishment of “a system of free public employment agencies under the control of a central authority”.

After the Second World War, Governments worldwide committed themselves to achieving full employment. In this context, the Employment Service Convention, 1948 (No. 88) and the Employment Service Recommendation, 1948 (No. 83) created the foundation for a more dualistic system of employment services, highlighting the vital role public employment services should play in bringing together jobseekers and employers to achieve and maintain full, productive and freely chosen employment and, to a significant degree, recognizing the contribution of private agencies to ensure the effective functioning of the labour market and the facilitation of occupational and geographical mobility.

At the time that Convention No. 88 and Recommendation No. 83 were adopted, the accepted regulatory approach was to emphasise the public responsibility for free employment services to match supply and demand in the labour market, holding that placement of workers should not be a commercial activity. The instruments also reflected the rapid progress in public employment service organization worldwide and multiplication of national laws and regulations.

Though the relationships between public employment services and private employment agencies have changed over time, the pivotal role of public employment services in contributing to the national policy package for the realization of full and productive employment has been a constant, and has been reaffirmed in newer ILO instruments in the field of employment policy.2 The 2030 Agenda for Sustainable Development (SDG8.5) includes the goal of full and productive employment and decent work for all women and men, including for young people and persons with disabilities, and equal pay for work of equal value.

1 Declaration of Philadelphia, III (a)(b)(c), refer to “the employment of workers in the occupations in which they can have the satisfaction of giving the fullest measure of their skill and attainments and make their greatest contribution to the common wellbeing”; and “the provision, as a means to the attainment of this end and under adequate guarantees for all concerned, of facilities for training and the transfer of labour, including migration for employment and settlement”. See further the ILO Global Jobs Pact, 2009, para. 9 (4), referring to the importance of public employment services in the context of resilience and crisis recovery. 2 The Employment Policy Convention, 1964 (No. 122), the Human Resources Development Convention, 1975 (No. 142), the Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168) and the Private Employment Agencies Convention, 1997 (No. 181). Fifth meeting of the SRM TWG (23-27 September 2018) TECHNICAL NOTE 2

ILO developments since adoption of the instruments

1. 1919: ILC adopted Convention No. 23 In considering the “remedy for unemployment”, the 1919 session of the Conference wished to give an impetus to the development of free public employment institutions. The main objective of Convention No. 2 is the establishment of systems of free public employment agencies in member States. 4

See: Convention No. 2

2. 1948: ILC adopted Convention No. 88 and Recommendation No. 83 Convention No. 88 requires Governments to maintain a free public employment service entrusted with the task of ensuring the best possible organization of the labour market, as an integral part of the national programme for the achievement and maintenance of full employment. Recommendation No. 83 sets out detailed measures in terms of general organisation, employment market information, budget, referral of workers, mobility of labour, miscellaneous provisions and international cooperation among employment services. See: Convention No. 88 and Recommendation No. 83

3. 1971: Governing Body considered whether to partially revise Convention No. 88

The Governing Body Committee on Standing Orders and the Application of Conventions and Recommendations examined the desirability of undertaking a partial revision of Convention No. 88 in view of its recent denunciation by Italy and the United Kingdom. After discussing the reasons for the denunciations, the Committee did not deem it necessary to recommend the partial revision of the Convention.

See: GB.184/11/18 (November 1971), paras 35-42

4. 1979 and 1987: Governing Body classified Convention No. 88 and Recommendation No. 83 as “instruments to be promoted on a priority basis”

The Governing Body, on the recommendation of the Ventejol Working Party, placed Convention No. 88 and Recommendation No. 83 in the category of instruments to be promoted on a priority basis.

See: Official Bulletin, Volume LXII Series A, 1979, p. 29

3 See 2019/SRM TWG/Technical note 1 on unemployment. 4 See Follow-up to consultations regarding social security instruments, (Governing Body, 282nd Session, November 2001, GB.282/LILS/WP/PRS/3), p.63, footnote 129.

Fifth meeting of the SRM TWG (23-27 September 2018) TECHNICAL NOTE 2

5. 1994: ILC discussion of Convention No. 88 in the context of the role of private employment agencies

In a general discussion on the role of private employment agencies in the efficient functioning of labour markets, the Conference reiterated its support for the principles set out in Convention No. 88 and, in particular, the duty of the employment services to ensure, where necessary, in cooperation with other public and private bodies concerned, the best possible organization of the labour market. It did not decide to revise the Convention.

See Conclusions concerning the role of private employment agencies in the functioning of labour markets ILC, 81st Session, Record of Proceedings, Provisional Record No. 21, para. 15

6. 1996 and 1999: Governing Body considered Convention No. 88 and Recommendation No. 83 to be interim instruments

The Governing Body decided, on the recommendation of the Cartier Working Party, that Convention No. 88 and Recommendation No. 83 were interim instruments.

See GB. 267/LILS/WP/PRS/2; GB. 274/LILS/WP/PRS/3

Analysis of Convention No. 88

Convention No. 88 contains 14 substantive provisions, all of which are consistent with the modern regulatory approach.

ANALYSIS OF SUBSTANTIVE PROVISIONS OF CONVENTION NO. 88

 Objective: obligation on ratifying States to maintain a free public employment service, the essential duty of which is to ensure, in cooperation with other public and private bodies, the best possible organisation of the labour market as an integral part of the national employment programme for the achievement of full and productive Article 1 employment

 Current relevance: The principle of a national system of employment services is consistent with current practices, as confirmed in the 2010 General Survey (para 207)

 Objective: employment services shall be structured as a network of regional and Articles local offices under national supervision and coordination 2-3  Current relevance: Consistent with current practices in most countries worldwide

Fifth meeting of the SRM TWG (23-27 September 2018) TECHNICAL NOTE 2

 Objective: requires establishment of advisory committees, through which representatives of employers and workers will cooperate in organizing and operating the employment service and developing employment service policy

Articles  Current relevance: Consistent with current practices; also consistent with C.122, 4-5 which requires consultation with employers and workers (art. 3), and C.142 which requires cooperation with employers’ and workers’ organisations in formulating and implementing vocational guidance and training policies and programmes (art. 5). Interaction by public services with employers and jobseekers is essential for effective implementation of employment policies (2010 General Survey, para. 208).

 Objective: public employment services shall be organised to ensure effective recruitment and placement, including measures for cross-border and geographical mobility

Article 6  Current relevance: Consistent with current practices and with C.97, C.143, R.86 and R.151 on establishing effective mechanisms for migrant workers seeking opportunities abroad. The provision allows for expansion of functions when necessary (General Survey, paras 266-274).

 Objective: requires specialisation by occupations and industries (eg agriculture and other branches of activity in which specialisation may be useful) and to meet the needs of particular categories of applicants (eg young persons and persons with disabilities) Articles 7-8  Current relevance: Consistent with current practices. Article 2 of C.159 calls on Members to formulate, implement and periodically review a national policy on employment of persons with disabilities. A focus on the agriculture sector and on youth employment is consistent with the report of the Global Commission on the Future of Work.

 Objective: staff of the employment service shall be independent public officials, with appropriate qualifications determined by the competent authority and with adequate Article 9 training

 Current relevance: Consistent with current practices

 Objective: requires measures to encourage employers and workers to make full use of employment service facilities on a voluntary basis. Article 10  Current relevance: Consistent with current practices, as reflected in General Survey (para 295).

 Objective: requires measures to secure effective cooperation between the public employment services and private employment agencies not conducted with a view to profit.

Article 11  Current relevance: Consistent with current practice. Complementary provision in C.181 (art. 13) which concerns cooperation between the public employment service and all private employment agencies. Cooperation between public employment services and private employment agencies is a growing practice to improve service provision, as set out in General Survey (paras 220-234).

Articles  Objective: sets special arrangements for special territories 12-14

Fifth meeting of the SRM TWG (23-27 September 2018) TECHNICAL NOTE 2

 Current relevance: These articles allow flexibility in the context of national public employment services and, while consistent with current practices, are rarely used today.

The instruments in 2019

A Policy context

Since the creation of the ILO, public employment services have been recognized and promoted as a key institution implementing employment and labour market policies in support to achieving full employment. Convention No. 88 placed the main responsibility for maintaining a free employment service on the public authority, while Convention No. 181 emphasized the important role of private actors in effectively delivering services to clients with diverse needs.

The rapid changes in the world of work, brought about by among other things demographic shifts and the expansion of automation, artificial intelligence, digital platforms and new information and communications technologies (ICTs), are changing the very nature of work. More than ever, public employment services are confronted with complex challenges, including a growing polarization of job opportunities in the labour market between high and low-skilled workers as well as between temporary and more permanent workforces, unemployment and underemployment especially among young people and the need of older workers to stay active in the labour force for a longer period.

The application of Conventions Nos 88 and 181 remains fundamental, especially in the promotion of inclusive, non-discriminatory labour markets, and adequate protection mechanisms and clear rules for private and specialist job brokerage providers. Reports submitted by member States who ratified Convention No. 88 concerning its application show that the services and labour market programmes offered by national public employment services have expanded and diversified from job matching to enhancing employability, addressing skill mismatches and linking support directly to employers and workers through operating various active labour market programmes.

In the aftermath of the global economic and financial crisis of 2008-2009 there has been a growing demand from ILO member states for evidence-based advice on policies and interventions that are effective in expanding job opportunities for all categories of workers. Various actions from the Office have been launched to support coherence between employment policy objectives (pursued through the Employment Policy Convention, 1964 (No. 122)) and the delivery of targeted employment services and active labour market polices (ALMPs). The promotion of the ratification and application of Conventions Nos 88 and 181 has been among key means of action along with technical advice for establishing regulatory frameworks and collaborative arrangements with private employment agencies.5

5 See ILO support for the role of public employment services in the labour market, (Governing Body, 306th Session, November 2009, GB. 306/ESP/3/2), para 14.

Fifth meeting of the SRM TWG (23-27 September 2018) TECHNICAL NOTE 2

The 2019 report of the Global Commission on the Future of Work published in January 2019 emphasized the importance of public employment services, and their role in supporting people through increasing labour market transitions. The Commission calls for more investment in the institutions, policies and strategies that will support people through future of work transitions, identifying that public employment services need to be expanded and given adequate financial resources to fully achieve their mandate. The future of work agenda observes new trends in service provision through taking advantage of ICT innovations combining digital services with personal counselling and job placement services and improving availability of labour market information to support decision-making.6

In the last few years, many countries have started adopting a more proactive approach to the application of employment services and active labour market policies to anticipate and prepare workers for future labour market needs. Moreover, the range of labour market programmes available to employment services and other actors has increased since the adoption of Convention No. 88 in line with labour market realities. These developments resonate well with the strategy outlined by the Commission which emphasises the importance of making ALMPs proactive to help workers better prepare for these transitions, as well as with the principal objectives of the Convention. Policies for the activation of the unemployed are widely used by high-income countries with well-established public employment services. Middle- and low- income countries are also investing and testing new delivery methods to ensure access to the full spectrum of employment services and ALMPs through partnering with public, private and community/NGO sector providers. In the absence of unemployment insurance benefits, many of these countries use ALMPs as incentives to reintegrate the unemployed in the job market or self-employment.

B International labour standards context

(1) Information relating to the ratification of Convention No. 88

Convention No. 88 is one of the most widely ratified of the ILO technical Conventions,7 and was last ratified in January 2019 by Viet Nam.

Effective Convention Further information ratifications:

Convention 89 effective  Most recent ratification: 2019 (Viet Nam) ratifications No. 88  Denunciations: Bulgaria (1961), Italy (1971), and the United (3 denunciations) Kingdom (1971)

6 See ILO, Global Commission on the Future of Work: Work for a brighter future, 2019, Geneva, pp. 11 and 33. 7 Convention No. 88 is the sixth most widely ratified ILO technical Convention, following Convention No. 11 on right of association (agriculture) (123 ratifications and 0 denunciations); Convention No. 19 on equality of treatment (accident compensation) (121 ratifications and 0 denunciations); Convention No. 14 on weekly rest (industry) (120 ratifications and 0 denunciations); Convention No. 26 on fixing machinery for minimum wage (105 ratifications and 1 denunciation); and Convention No. 95 on protection of wages (98 ratifications and 1 denunciation).

Fifth meeting of the SRM TWG (23-27 September 2018) TECHNICAL NOTE 2

 Ratification by dates: 1949-1968: 46 ratifications; 1969- 1988: 22 ratifications; 1989-2008: 20 ratifications; 2009- 2019: 4 ratifications.  Ratification by region: Europe and Central Asia: 39 ratifications;8 Africa: 20 ratifications;9 Americas: 18 ratifications;10 Asia and the Pacific: 12 ratifications;11 Arab States: 3 ratifications.12

The Committee of Experts recorded, in its 2010 General Survey, prospects for ratification of Convention No. 88 by certain member States, as well as reasons for its non-ratification by other member States. 13 In particular, the Committee recorded that 17 member States indicated prospects for ratification of Convention No. 88, two of which have completed the ratification process by March 2019: Mali (2016) and Mongolia (2015). Obstacles to ratification of Convention No. 88 noted in the 2010 General Survey included divergence from national legislation;14 it being an inopportune time;15 and disagreement with certain provisions.16 Three member States indicated that while they had no immediate prospects of ratifying the instrument, they applied the provisions or the overarching principles of Convention No. 88 in their national legislation.17

(2) Information concerning the implementation of Convention No. 88

The Committee of Experts actively supervises the application of Convention No. 88. In relation to the 77 comments currently pending concerning the application of Convention No. 88:

 64 are direct requests for detailed information concerning the application of the Convention.

8 Albania, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Cyprus, Czech Republic, Denmark, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Israel, Italy, Kazakhstan, Lithuania, Luxembourg, Malta, Moldova, Republic of, Montenegro, Netherlands, North Macedonia, Norway, Portugal, Romania, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey and United Kingdom. 9 Algeria, Angola, Central African Republic, Democratic Republic of the Congo, Djibouti, Egypt, Ethiopia, Ghana, Guinea-Bissau, Kenya, Libya, Madagascar, Mali, Mauritius, Mozambique, Nigeria, Sao Tome and Principe, Sierra Leone, Tanzania. Tanganyika and Tunisia. 10 Argentina, Bahamas, Belize, Bolivia Plurinational State of, Brazil, Canada, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Nicaragua, Panama, Peru, Suriname and Bolivarian Republic of Venezuela. 11 Australia, India, Indonesia, Japan, Korea, Malaysia, Mongolia, New Zealand, Philippines, Singapore, Thailand and Viet Nam. 12 Iraq, Lebanon and Syrian Arab Republic. 13 See, General Survey concerning employment instrument, (International Labour Conference, 99th Session, 2010, Geneva, Report III (Part 1B)), paras. 706-710. 14 See General Survey 2010, para. 707. 15 See General Survey 2010, para. 708. 16 See General Survey 2010, para. 709. 17 General Survey 2010, para. 706: Bulgaria, Trinidad and Tobago and the United Kingdom.

Fifth meeting of the SRM TWG (23-27 September 2018) TECHNICAL NOTE 2

 The Committee of Experts considered observations from workers’ organizations in 12 comments18 and from employers’ organizations in four comments.19  The most commonly raised substantive elements by the Committee include requests for information concerning the contribution of the employment service to employment promotion, 20 cooperation with employers' and workers' representatives in the organization and functioning of employment services, 21 cooperation with private employment agencies,22 and special arrangements for the recruitment and placement of young persons, persons with disabilities and persons belonging to other groups in vulnerable situations in relation to the labour market.23  Some member States reported the adoption of new policies, legislation and measures to strengthen national public employment services in the context of the application of Convention No. 88.24

Key considerations

In examining Convention No. 88 and Recommendation No. 83 for the purpose of determining their status, the following considerations are particularly relevant:

 Convention No. 88 is in force in 89 countries and is one of the most ratified of ILO technical Conventions.  The application of Convention No. 88 is actively supervised by the Committee of Experts, which has considered observations from workers’ and employers’ organizations concerning its application.  The regulatory approach of emphasising the vital role of public employment services in achieving full and productive employment laid down by Convention No. 88 remains highly relevant. It is, furthermore, complementary to the most up-to-date instrument on private employment agencies, Convention No. 181.  The increasing importance of, and the need to enhance, public employment services to face challenges and opportunities in the future world of work has been highlighted at both national and international levels. The 2019 report of the Global Commission on the Future of Work emphasized the importance of public employment services, and their role in supporting people through increasing labour market transitions. The provisions of Convention No. 88 provide the foundation for member States’ actions to

18 Angola, Spain and Bolivarian Republic of Venezuela, observations published in 2018; Madagascar and Australia, direct requests published in 2018; Czech Republic, direct request published in 2017; Finland, Japan and New Zealand, observations published in 2016; Serbia, observation published in 2016; Turkey and Portugal, direct requests published in 2016. 19 Spain and Bolivarian Republic of Venezuela, observations published in 2018; New Zealand, observation published in 2016; and Turkey, direct request published in 2016. 20 73 substantive pending comments mentioned this aspect. 21 52 substantive pending comments mentioned this aspect. 22 30 substantive pending comments mentioned this aspect. 23 33 substantive pending comments mentioned this aspect. 24 See Niger, observation published in 2019; New Zealand, observation published in 2016; Australia, direct request published in 2018; France, direct request published in 2015.

Fifth meeting of the SRM TWG (23-27 September 2018) TECHNICAL NOTE 2

improve the agility and effectiveness of public employment services in line with the conclusions of the Global Commission. Additional guidance on the opportunities provided by the instruments to support member States in this regard could increase their reach.

Possible action to be considered in relation to the instruments

The role of public employment services remains crucial in efficient and well-functioning labour markets. If anything, the importance of that role has been highlighted by the ongoing changes in the world of work. In that context, there is nothing to suggest that the instruments concerning public employment services have lost their purpose.

Further, the approach taken by the instruments to fulfil that purpose is consistent with the modern regulatory approach to employment policy, as reaffirmed by the highly inter-related Convention No. 181 on private employment agencies. It is also consistent with the expected needs of the current and future world of work, although guidance may be developed on how its provisions could best support public employment services in combining digital services with personal counselling and placement services; improving labour market information for decision-making; and reinforcing collaboration between public employment services and other partner organizations.

Following its review of Convention No. 88 and Recommendation No. 83, and tailoring lessons learnt through the SRM TWG process to the specificities of this review, the SRM TWG will take decisions concerning the three elements within its mandate and make corresponding recommendations to the Governing Body:

1. STATUS OF CONVENTION NO. 88 AND RECOMMENDATION NO. 83: The SRM TWG could consider whether, within their current legal status as active instruments, Convention No. 88 and Recommendation No. 83 should be classified as up- to-date instruments. 2. IDENTIFICATION OF GAPS IN COVERAGE: In determining whether or not a regulatory gap in coverage exists in relation to public employment services, the SRM TWG should consider all relevant elements, including that: i. no later Conventions regulate the subject matter covered by Convention No. 88; ii. the latest related Convention on private employment agencies, Convention No. 181, is complementary to Convention No. 88; and iii. non-normative or normative guidance could be provided on how Convention No. 88 could best support public employment services in the future world of work.

Fifth meeting of the SRM TWG (23-27 September 2018) TECHNICAL NOTE 2

3. FOLLOW-UP ACTION AS APPROPRIATE: Considering past practices of the SRM TWG and the specificities of instruments under review, the SRM TWG could decide what follow up action should be taken: i. The SRM TWG could recognize the value of promoting the ratification and effective implementation of up-to-date international regulation on the role of public employment services in efficient and well-functioning labour markets. Accordingly, the SRM TWG could recommend that the Office supports the tripartite constituents in taking steps to ensure ratification and effective implementation of Convention No. 88 by member States. ii. The SRM TWG could recognize that, in light of the Global Commission’s conclusions, particular attention should be paid to ensuring comprehensive Office support to enhance public employment services in combining digital services with personal counselling and placement services; improving labour market information for decision-making; and reinforcing collaboration between public employment services and other partner organizations. In that context, the SRM TWG could decide to recommend that the Governing Body requests the Office to: a) offer technical assistance to ratifying member States in relation to the way in which Convention No. 88 and Recommendation No. 83 can support the enhancement of public employment services to respond to challenges in the current and future world of work; or b) create and disseminate tools providing guidance to support the enhancement of public employment services to respond to challenges in the current and future world of work; or c) take steps to develop technical guidelines to support the enhancement of public employment services to respond to challenges in the current and future world of work.