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The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
August 31, 2021 |
Pages:
40-49
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue08-08
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‘
ABSTRACT
The consequences and reasons of the activities of private employment agencies in regulation of
migration in the context of demographic, environmental, social and general legal approaches in
society are studied in this article. Migrants who left Uzbekistan to work abroad for twenty-five years,
their geography and its main reasons are analyzed. In the last two years, permission for private
employment agencies in Uzbekistan to carry out their activities, their activity of sending migrants
abroad has been based on insufficient legal and economic protection of migrants. At the same time,
various specialists, skilled workers and simply passionate people (creators of their own destiny) left
their homeland for political or economic reasons. Some of them leave to earn money temporarily and
some leave to live in a new place. As a result, these individuals tried to find their place in another
society. The activities of private employment agencies and the reasons for emigration from Uzbekistan
show that only through concrete economic and legal measures Uzbekistan can protect its citizens
from human trafficking and fraud.
KEYWORDS
Private employment agency; migration policy; temporary work agency; job placement; labour
contract; International Labour Organization, labour administration; labour legislation, Uzbekistan.
INTRODUCTION
In the process of globalization of the world
economy, the demand for qualified personnel
is growing. In addition, some countries have
surplus labour, while others have cheap labour
demand. Today, in the context of the COVID-19
pandemic, the demand for qualified personnel,
professionals in their specialties is growing all
over the world. This is due to the fact that the
The System Of Employing Migrant Workers In Uzbekistan
Through Private Employment Agencies: An Analysis Of
Existing Problems
Bekzod Musaev
Researcher At Tashkent State University Of Law, PhD, Uzbekistan
Journal
Website:
https://theamericanjou
rnals.com/index.php/ta
jpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 08-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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Published:
August 31, 2021 |
Pages:
40-49
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue08-08
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remote work method has taken a strong place
in the labour process.
It should be noted that private employment
agencies play an important role in organizing
external labour migration. The Institute of
Private Employment Agencies is a new
institution for Uzbekistan. Over the years, the
recruitment of employees within the country
and abroad has been carried out by the
competent state div. The system of market
economy, in turn, led to the entry of non-
governmental organizations in this sphere as a
full-fledged entity.
In world practice, the formation and
development of private employment agencies
dates back to the last century. Its global spread
has been influenced by the following factors: a
rapidly changing and moving labour market;
restrictions on employment as a civil servant,
i.e. limited jobs and special requirements; the
expansion of labour migration process as a
result of integration, and others.
The role of the Government as an employment
agency has been slowly diminishing over the
years, a trend observed throughout the world.
“The majority of recruitment for employment
abroad was once undertaken by the official
recruitment bodies, often in the form of
Government-sponsored transfer. In recent
years however, the increasing role of private
recruitment agencies has had the effect of
‘commercialising’ recruitment for foreign
employment, and far fewer migrants than
before
are
being
recruited
through
Government channels”
i
Although the Institute of Private Employment
Agencies has been little studied by еру CIS and
Uzbek scholars, it has not been analyzed in
terms of the current reality and problems
encountered in implementation of the current
law.
Scientists from foreign countries have been
studying this issue for many years. The results
of the study were published by T.Martínez, DE
Balducchi, RW Eberts, CJ O'Leary, P Craig, M
Freedland, C Jacqueson, N Kountouris, JB
Seymour
ii
and
others.
WAPES
(World
Association of Public Employment Services)
has been working in this area for many years
iii
.
If we focus on cross-sectoral study on this
theme, in recent years the problem of private
employment agencies has become not only a
major subject in human resource management
and organizing entrepreneurship (e.g. Lund-
Thomsen
iv
, Niforou
v
), but have also been
studied as objects of research in human and
economic geography and social anthropology
(Carswell ва De Neve
vi
, Coe ва Hess
vii
) or in the
spheres of development and international
political economy (Alford M., Barrientos S.,
Visser M.
viii
, Brookes
ix
, Egels-Zandén ва Merk
x
,
Selwyn
xi
).
The application of international labour
standards to the activities of employees of
transnational companies employed through
private employment agencies is also a theme of
extensive analysis. A study by Bartley ва Egels-
Zandén concluded that the ratio of
transnational
companies
and
collective
agreements in 120 Indonesian companies was
effective
xii
.
The article, published in 2020 by J. C.Graz,
N.Helmerich and C.Prébandier, is one of the
broadest studies to develop the role of
employment agencies in transnational private
management process, their interdependence,
the structure of mixed (hybrid) production
regimes
xiii
.
In addition, if we focus on research in this area,
the legal regulatory experiences of private
employment agencies were analyzed on
Australia
xiv
by O'Donnell, A., & Mitchell,
Indonesia
xv
by B. H. Juliawan, China
xvi
by Liu G.,
Sweden
xvii
by B.Nystrom, the Netherlands,
Spain, and Sweden by van Liemt G. In these
studies, the formation of this institution, the
problems encountered and the specifics of the
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legislation are analyzed.
To date, the issues of legal regulation of private
employment agencies in Uzbekistan and
Central Asia in general, the problems
encountered in the application of legislation in
this sphere have not been conceptually,
theoretically and practically analyzed.
To this end, this research process seeks to
answer three questions:
first
, how effective is
the legislation of Uzbekistan on private
employment agencies;
second
, how the two-
year law enforcement practice in this area was
formed;
third
, whether there is a need to fill
the gaps in the legislation on the basis of
international experience.
In response to these questions, an author’s
position will be developed and proposals will
be made to fill the gaps in the legislation of
Uzbekistan. Therefore, this article focuses on
the conceptual, theoretical and practical
understanding of the establishment of private
employment agencies in Uzbekistan.
THEORETICAL AND LAW BASIS
Despite the fact that private employment
agencies fill the traditional labour market,
today they are emerging as a new form of
development of human resource management
services, contributing to the improvement of
working conditions.
After the Second World War, as the main goal
of many countries was to reduce the
unemployment rate, such agencies began to
emerge as labour market managers
xviii
. It is
clear from this view that the socio-economic
development of the state had a special impact
on expansion of the functions of private
employment agencies and the growth of their
place in society.
The formation of legislation governing the
activities
of
governmental
and
non-
governmental organizations in the field of
employment promotion dates back to the 50s
of the last century
xix
.
In 1949, the ILO became the center of
discussion of these two different positions.
Given these two unacceptable perspectives,
ILO Convention No. 96 supports a neutral point
of view. According to it, the ILO gives states the
right to ratify the Convention by choosing one
of the two points of view, without objecting to
the monopoly of states in the field of
employment
xx
.
At the same time, some experts are skeptical
about the further development of the liberal
attitude of the ILO in this form. One third of the
states that have ratified this Convention have
refused to recognize it. These states include a
number of developed countries, including
Spain,
Portugal
and
the
Scandinavian
countries
xxi
.
With the adoption of the ILO Convention No.
181 on Private Employment Agencies in 1997,
the process of recognition and development of
these agencies by states began. This is due to
the fact that the convention contains norms
aimed at regulating the activities of agencies,
the legal regulation of issues related to their
employment. To date, the convention has been
ratified by 20 states
xxii
.
This convention, by its very nature, aims to set
common standards in this sphere, the norms of
which are flexible and can be applied
depending on the specifics of the state.
In order to implement the provisions of this
Convention in national legislation and the
effective implementation of the activities of
agencies, it is expedient to analyze the norms,
regulations and positive experience of foreign
countries in this sphere.
In the world experience, the development of
private employment agencies is associated
with a number of factors: rapid volatility and
mobility of the labour market; monopolization
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of public administration in the sphere of
employment and inability to use all its
opportunities;
formation
of
innovative
methods aimed at regulating the employment
process.
M. Abella, the head of the ILO’s International
Department, in his book “Sending workers
abroad” notes that states would be better
placed to manage foreign employment if they
had well-functioning public employment
services that can also undertake recruitment
and placement activities for foreign employers.
It noted that participation of the private non-
governmental sector in employment issues has
the following advantages:
No funds are spent from the state budget
for the selection and recruitment of highly
qualified personnel by private employment
agencies. On the contrary, income from the
provision of services by agencies is taxed
by the state;
Private companies need to change their
activities quickly in accordance with
market conditions and apply new
innovative
methods
independently
without any administrative process. Public
authorities may carry out this work after
concluding administrative agreements
with public authorities. This means that the
activities
of
private
agencies
are
characterized by flexibility.
The private sector will always be interested
in improving its activities, introducing new
forms of migration.
It is known from world experience that
foreign employers in most cases prefer to
work
with
private
employment
agencies
xxiii
.
It should be noted that the issue of labour
migration has been of particular importance
for Uzbekistan over the past fifteen years. This
is due to the expansion of the labour market,
the legal regulation of labour in foreign
countries and the inflow of capital from foreign
countries. That is why private employment
agencies are mostly approached by migrant
workers.
In 2019, the volume of international
remittances of the population of Uzbekistan
amounted to 5.2 billion dollars. Of this amount,
the population sent $4.5 billion from foreign
countries
to
Uzbekistan
through
the
international money transfer system. It was
reported that the volume of foreign currency
inflows through international money transfers
increased by 18% compared to the same period
in 2018: in 2018, that amount was $3.8 billion
xxiv
.
The growing demand of companies for fast and
efficient staff in the last decade has been
accompanied by an increase in the process of
sending foreigners to other countries to work
through various programs, influencing the
growth of the role and place of private
employment agencies in the labour market.
Agencies such as TEKsystems US, Hays plc,
Cegos France, Modis, Harvey Nash, Michael
Page International UK, Heidrick&Struggles,
Futurestep, Antal International, Michael Page
International
US
xxv
are
the
leading
organizations in the field of recruitment
services
xxvi
.
According to the International Confederation
of Private Employment Agencies (CIETT),
annual recruitment revenue is 450 billion
euros, of which 70% is accounted for by
recruitment services. Annual revenue from this
service is 8.6%. As a result of this service, an
average of 71.9 million people are employed in
the labour market
xxvii
.
These positive developments have helped to
eliminate the state monopoly in employment
by changing the legislation of many countries.
With the collapse of the former Soviet Union, it
became possible to observe these positive
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trends for the first time in the newly formed
states.
The Institute of Private Employment Agencies
is a new sphere and a new institution for
Uzbekistan.
Initially, relations in this area are regulated by
the Law of the Republic of Uzbekistan “On
employment of the population” (1998). Article
13 of the law stipulates that “Citizens of the
Republic of Uzbekistan have the right to
engage in labour activity outside the territory
of the Republic of Uzbekistan, to seek for job
independently and employment”.
Based on this norm, it can be said that
Uzbekistan citizens can look for job not only in
the territory of the country, but also in foreign
countries and freely pursue their chosen
professions. The procedure for entering or
leaving the territory of Uzbekistan for
employment shall be determined by the
domestic legislation of each state.
The fact that foreign citizens enter into various
labour relations in one or another country, in
turn, indicates the presence of a foreign
element in these relations. This makes it
necessary to regulate these relations through
private international legal norms. There are
separate
studies
in
this
sphere
in
Uzbekistan
xxviii
.
Based on the above ILO Convention and
international experience, the Law “On Private
Employment Agencies” was adopted on
October 16, 2018, granting the right to operate
in the sphere of employment in the private
sector in Uzbekistan
xxix
. However, the
implementation of the law in almost two years
of practice has shown that there are many
problems and issues that need to be addressed
in this area.
RESULTS AND DISCUSSION
The scope of legislation governing the
activities of private employment agencies is
interrelated with the forms of services they
provide.
For example, while a number of states have
enacted special laws regulating agencies
engaged in temporary employment, in other
cases they cover the employment of citizens in
foreign countries, the third form of legislation
is aimed at regulating other employment-
related services of agencies.
Legislative regulation of employment is an
important
condition
for
the
effective
organization of this sector. Therefore, national
legislation regulates the labour activity of
citizens not only within the country but also in
foreign countries.
It should be noted that the draft law “On
recruitment activities” was first developed in
the legislation of Uzbekistan and this project is
based on international standards of the
International Labour Organization Convention
No. 181 on Private Employment Agencies
adopted on June 19, 1997 and taking into
account
the
foreign
experience
of
development, this draft law was renamed
xxx
and adopted as the Law of the Republic of
Uzbekistan “On Private Employment” of
October 16, 2018
xxxi
.
Taking into account the special role of this law
in the introduction of new market mechanisms
for employment, it is necessary to study the
issues
of
further
improving
the
implementation of this new legal institution in
Uzbekistan,
analyzing
the
legislative
experience, achievements and problems of
countries that have achieved positive results in
this sphere.
The Law of the Republic of Uzbekistan “On
Private Employment Agencies” was adopted
on October 16, 2018 in order to regulate non-
governmental mechanisms for the provision of
services to job seekers on job selection and
employment,
personnel
selection
for
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employers, as well as providing information
and consulting services in the field of
employment.
The following are the requirements and
conditions of the license for employment of
citizens of the Republic of Uzbekistan abroad:
Compliance with the legislation of the Republic
of Uzbekistan on labour and labour migration;
Reserve funds in the amount of
$195,000
in the
deposit account of the Fund for Suppor and
Protection of the Rights and Interests of
Citizens Working Abroad under the Ministry of
Employment and Labor Relations of the
Republic of Uzbekistan at the expense of the
applicant’s authorized fund;
Implementation of activities provided only by
the Law of the Republic of Uzbekistan “On
Private Employment Agencies”;
Employment of at least two persons, including
a manager with higher education;
Obtaining a qualification certificate by
employees of the legal entity at least once
every three years in accordance with the
procedure established by the licensing
authority;
Creation of necessary conditions for the
implementation of this activity, including the
availability of own or rented room, the use of
appropriate material and technical base, other
technical means.
If at the time of quarterly revaluation of the
licensee’s funds deposited in the deposit
account, if the amount of funds deposited in
the reserve is less than
$195 thousand
, the
licensee must transfer the missing part of the
funds to the deposit account.
The fund supports migrant workers. The main
purpose of these funds is to compensate the
job seeker for the damage caused to him at the
expense of these funds, if they are victims of
fraud, violence or human trafficking, asylum
and unemployment in a foreign country.
However, during the implementation of this
law for almost two years, a number of
problems occured that need to be legally
addressed.
In accordance with the requirements of this
law,
88 legal entities
are registered in the
register of the Ministry of Labor as private
employment agencies.
66 of them have been
licensed to engage in employment abroad,
and
59 of them are currently operating
.
In 2019,
1876
people were employed abroad by
private employment agencies,
77
citizens were
employed in the country,
33 838 people were
provided with consulting and information
services.
As of December 2019, the number of citizens
sent abroad by agencies was
1876
, including
1005 to the Russian Federation, 529 to Turkey,
6 to the UAE, 6 to Bulgaria, 6 to Estonia, 5 to
Israel, 72 to Latvia, 213 to Lithuania, 25 to
Poland, 1 to Qatar, 2 to Kazakhstan, 1 to Oman
and 5 to Japan.
In 2021
12 out of 106 private employment
agencies
licensed to employ job seekers
outside the Republic of Uzbekistan
have not
sent any citizens to work abroad.
In Uzbekistan, by mid-2019, the licenses of
8
private employment agencies were revoked,
the
licenses of 3 agencies
were suspended and
criminal proceedings were instituted against
3
of them.
In 2019, the Ministry of Internal Affairs opened
a criminal case on the activities of the LLC
«Human xususiy bandlik agentligi» (Human
Private Employment Agency), officials of the
«Profelite IMP xususiy bandlik agentligi»
(Profelite IMP Private Employment Agency)
and the LLC «Korean and migrations xususiy
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bandlik agentligi» (Korean and Migration
Private Employment Agency) are under
investigation.
According to the Ministry of Internal Affairs of
the Republic of Uzbekistan, 3 private
employment agencies were opened criminal
cases, causing
more than 50 billion soums
(about $5 million)
in damage to citizens and
committing fraud.
However, the funds mentioned above do not
cover this damage at all. It is clear that the
private employment agencies that committed
the crime took advantage of these loopholes in
the legislation, in particular the ineffectiveness
of the norms on the protection of workers’
rights.
All this shows that there are gaps in the
legislation in the sphere of private employment
agencies in Uzbekistan, and as a result, some
private employment agencies are using these
gaps to cause material and moral damage to
citizens.
The experience of foreign countries shows
that the boundaries of the legal regulation of
private employment agencies are clearly
defined and the protection of citizens’ rights is
reliably ensured through the transparent
organization of their activities.
Including, the legal documents on the
activities of employment agencies such as the
Employment Agents Act of Australia adopted
in 1976, the Employment Agencies Act of the
United Kingdom adopted in 1973, the
Employment Agencies Act of 1990 adopted in
Canada, the Private Employment Agencies Act
of 1981 adopted in Malaysia, the Employment
Agencies Act of 1958 adopted in Singapore
clearly define the scope of activities of
agencies and the stages of state control.
ILO Convention No. 181 on Private Employment
Agencies, adopted on June 19, 1997, also sets
out mechanisms to prevent discrimination in
relations of private banking agencies with
citizens, transparency in the operation and
control of the competent authorities.
The absence of these legal mechanisms in the
national legislation leads to the violation of the
legitimate rights and interests of our citizens
by some private employment agencies.
Based on the above, it is proposed to make the
following amendments and additions to the
Law “On Private Employment Agencies” aimed
at protecting the rights and interests of
citizens:
The law stipulates that a job seeker must
make an advance payment of
not more
than 20%
of the cost of the sending
organization’s services
within 5 working
days
after signing a contract for
employment of job seekers outside the
Republic of Uzbekistan, and the remaining
payment for services it is proposed to
introduce only
after obtaining a work visa
;
It is necessary
to introduce a procedure for
registration
of
the
contract
of
employment in a foreign country
on a
special website
of the Ministry of
Employment and Labor Relations of the
Republic of Uzbekistan;
It is proposed to include in the obligations
of the private employment agency
provided for in the Article 17 of the law the
norm of the obligation to insure civil
liability for damage caused by non-
performance
of
their
contractual
obligations to persons seeking work
outside the Republic of Uzbekistan;
Implementation of these proposals will
contribute to the full implementation of
transparency in the activities of private
employment agencies, to ensure the rights
and interests of citizens.
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CONCLUSION
People who apply to private employment
agencies in Uzbekistan mainly aim to go abroad
as labour migrants and enjoy legal guarantees
in these countries.
It is not always correct to assess poverty as the
main criterion in labour migration, because
even if a person does not consider himself
poor, gaining experience in another country or
wanting to work on new technologies can also
lead to going abroad as a labour migrant.
It should be noted that problems of labour
migration have existed since the earliest times
of human history, the factors that led to labour
migration at that time are still preserved
today
xxxii
.
Labour migration organized through private
employment agencies has advantages for both
the migrant worker and the sending state, as
well as for the receiving state. It also has a
positive impact on the economic growth of the
country that sends and hires labour.
Like any social phenomenon, international
labour migration has a number of negative
consequences. Among them is the growing
tendency to consume funds earned abroad;
desire to hide earned income; intellectual loss
i.
Migrant Workers, International Labour
Conference,
87th
session,
1999,
Information and Reports on the
application
of
Conventions
and
Recommendations,
International
Labour Office, Geneva.
ii.
Martinez,
Tomas.
The
human
marketplace: an examination of private
employment agencies. Transaction
Books, 1976. p. 13. Retrieved 28
September 2011; Balducchi, David E.,
Randall W. Eberts, and Christopher J.
O'Leary, eds. Labor Exchange Policy in
resulting from the relocation of highly qualified
individuals; the possibility of a decline in the
skills of migrant workers from underdeveloped
countries, and so on.
In our opinion, a number of services are
provided to migrants and employers by
governmental
and
non-governmental
employment assistance organizations at all
stages of the labour migration process. These
include the selection of staff, obtaining
permits, providing information and consulting
services,
medical
and
professional
examinations, assistance in obtaining health
insurance, and others.
In the context of the labour market based on
the globalization in Uzbekistan, most migrant
workers do not have sufficient legal
knowledge about employment, the protection
of their rights and obligations, their labour
rights. And, it is natural for employers to have
difficulty meeting their needs for skilled and
productive personnel.
All these determines the prospects for the
activities of non-governmental organizations
to balance supply and demand in the labour
market.
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The following countries have ratified
the
Convention:
Albania,
Egypt,
Belgium, Bulgaria, the Czech Republic,
Ethiopia, Finland, Georgia, Hungary,
Italy, Japan, Lithuania, the Republic of
Moldova, Morocco, the Netherlands,
Panama, Portugal, Spain, Suriname and
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https://www.teksystems.com;
www.harveynash.com;
https://www.michaelpage.co.uk;
https://www.antal.com and in other
websites, you can become acquainted
with the activities of these private
employment agencies.
xxvi.
To find out the 100 best companies in
recruitment activities, visit the website
below:
https://www.jobrank.org/top100-
recruiters/
xxvii.
The full text of the report is available
on
this
website:
http://www.ciett.org/economicreport2
016/
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pecularity of legal regimes applying to
the subjects of labour relations in
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17.10.2018, No. 03/18/501/2056
xxx.
To become acquainted with the
process of discussion of the draft law,
you can refer to the following Internet
sources: http://uza.uz/oz/society/onun-
loyi-alari-mu-okama-ilindi-11-04-2018;
http://xs.uz/uzkr/post/-rekruting-
faoliyati-hayotga-tatbiq-etilmoqda-u-
nima-ozi;
http://parliament.gov.uz/uz/events/fra
ctions/23750/?-sphrase_id=4074431;
http://www.uzlidep.uz/news-of-
party/1365;
http://parliament.gov.uz/uz/events/opi
nion/23657-/?sphrase_id=4074431;
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Economic
Research:
What
fundamentals drive world migration? /
By T.J. Hatton, J.G. Williamson. NBER
Working Paper 9159 (Cambridge, MA,
Sep. 2002). P. 3.
