CMNT_TITLE

Domestic Workers Convention, 2011 (No. 189) - Costa Rica (RATIFICATION: 2014)

Other comments on C189

Observation

2019

Direct Request

2019
2017

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The Committee notes the observations of the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP), supported by the International Organisation of Employers (IOE), received on 1 September 2018. The Committee also notes the Government’s replies to these observations.

Article 1(1)(c) of the Convention. Occasional or sporadic domestic workers. In its previous comments, the Committee noted the inclusion of the terms “regularly and systematically” in the definition of “domestic servants” in section 101 of the Labour Code, from which it understands that those workers who provide intermittent or sporadic domestic services are not considered to be domestic workers under the legislation. For this reason, the Committee suggested that the Government consider the possibility of adopting the necessary measures to include occasional or sporadic workers who perform domestic work on an occupational basis in the definition of domestic workers and thereby ensure that they are covered by the labour code in accordance with the Convention. The Committee notes the Government’s indication that, although the above-mentioned definition of a domestic servant seems to exclude occasional or sporadic domestic workers, in practice, the labour rights of such workers are recognized. In this regard, the Government refers to provisions of the legal system regulating certain aspects of the conditions of work of domestic workers with working days shorter than the ordinary day of eight hours. In particular, section 105(c) of the Labour Code establishes that, “for working days shorter than eight hours, but longer than three hours, the right to rest shall be proportional to the working day”. Furthermore, section 106 of the Labour Code, which governs the right to compensation of domestic workers or their right holders under certain grounds for termination of employment, provides that, “in the event that working days are shorter than the standard, these rights shall be maintained proportionally.” The Government also refers to the adoption on 6 July 2017 of the regulations for the registration of employers and the contributory insurance scheme for domestic workers, under which domestic workers who perform that work as a main or supplementary task may be insured. In particular, section 2(1) of the regulations provides that “for the purposes of these regulations, a domestic worker means any person who performs the work of cleaning, cooking, washing, ironing and other household or private residence work, including non-specialized care of persons, whether as a principal or supplementary activity.” While taking note of the Government’s explanations regarding the protection of occasional or sporadic domestic workers, the Committee requests the Government to consider the possibility of amending section 101 of the Labour Code with a view to avoiding legal gaps or uncertainty in the protection of such workers. The Committee also requests the Government to send information on any measures adopted or envisaged in this respect.

Article 3(2)(a) and (3). Freedom of association. In its previous comments, the Committee, taking into consideration the high number of migrant domestic workers in the country, requested the Government to provide information on the progress made in the adoption of the proposed constitutional reform that envisages the removal of the prohibition on foreign nationals from holding office or exercising authority in trade unions. The Committee also requested the Government to provide information on the measures taken or envisaged to ensure in practice the right to organize and collective bargaining of domestic workers, including migrant domestic workers. The Committee notes the Government’s indication that the proposed constitutional reform is currently undergoing its second reading, so although the adoption process is active, no progress has yet been made in this regard. The Government adds that three readings before the Legislative Assembly are required for the adoption of the above-mentioned proposed constitutional reform. Furthermore, the Government indicates that, in accordance with national legislation and jurisprudence, all workers have the right to freedom of association and collective bargaining, including migrant domestic workers. The Committee observes, however, that the Government has not provided information on the measures adopted or envisaged to promote and ensure in practice the right to freedom of association and collective bargaining of domestic workers. In this respect, the Committee recalls that the specific characteristics of domestic work, which often include a high level of dependence on the employer (especially in the case of migrant workers), and the frequent isolation of domestic workers in their workplace, are factors which make it especially difficult for domestic workers to establish and join unions. The protection of freedom of association and the right to collective bargaining is therefore of particular importance in this sector and it is necessary to adopt measures to guarantee not only in law, but also in practice, these rights for domestic workers. The Committee therefore reiterates its request to the Government to provide detailed information on the measures taken or envisaged to ensure in practice the right to organize and collective bargaining of domestic workers, including migrant domestic workers. The Committee requests the Government to continue providing information on the status of the adoption of the proposed constitutional reform that envisages the removal of the prohibition on foreign nationals from holding office or exercising authority in trade unions.

Article 3(2)(b). Forced labour. The Committee notes the detailed information provided by the Government in response to its previous comments on the implementation of different projects to prevent, address and persecute the crime of trafficking and the illegal trafficking of migrants, including domestic workers. Among other measures, the Government refers to the formulation of the National Policy against Trafficking in Persons and the strategic plan of work 2016-2020 of the National Coalition against Illicit Trafficking and Trafficking in Persons (CONATT). The Government also reports the establishment of the CONATT Immediate Response Team (ERI), an inter-institutional body specialized in implementing primary care measures for victims of the crime of trafficking in persons and their dependants. The Immediate Response Team is also responsible for establishing the status of alleged victims as such with a view to enabling them to access services for the care of victims. According to statistical information from the CONATT, between 2016 and 2018, the Immediate Response Team identified 15 victims of trafficking for the purposes of labour exploitation. However, the Government does not indicate which of these cases were for the purposes of domestic work. The Committee requests the Government to continue providing updated information on measures adopted or envisaged with a view to guaranteeing that domestic workers are not subjected to forced or compulsory labour, including those adopted in the context of the National Policy against Trafficking in Persons.

Articles 3(2)(c) and 4. Child labour. In reply to the Committee’s previous comments, the Government refers to the “roadmap to make Costa Rica a country free from child labour and its worst forms for the period 2010-2020”, which aims to: prevent and eliminate child labour performed by children under the age of 15 years and the worst forms of child labour among persons under the age of 18 years; and protect the well-being and rights of young workers aged between 15 and 18 years. The Committee notes the information provided by the Government in relation to the action taken by various institutions and organizations to implement the above-mentioned road map. In this regard, the Government indicates that Office for the Prevention and Elimination of Child Labour and the Protection of Juvenile Workers (OATIA) has conducted training on child labour and work by young persons for public officials, employers and workers’ organizations. The Government also indicates that, when cases of child labour are identified, the OATIA conducts social and labour investigations with a view to determining the appropriate action in each case, which generally involves removing the boy or girl from domestic work and providing him or her with financial support for reintegration into and continuance in the education system. Furthermore, if the families need help, they are integrated into support programmes for the population in a situation of vulnerability. In 2016, a section on child labour and work by young persons was introduced into the National Household Survey, with the aim of defining the issue of child labour in the country, including domestic child labour. The Government indicates that, when the survey was carried out, few cases of child domestic labour were identified. However, the Committee recalls that, in its 2017 comments on the Worst Forms of Child Labour Convention, 1999 (No. 182), it noted the observations of the Confederation of Workers Rerum Novarum (CTRN), which emphasized that domestic work accounted for one of the largest proportions of child labour (10.3 per cent) and that 56,753 young persons between the ages of 5 and 17 years were engaged in domestic work in households, including hazardous types of work. The Committee requests the Government to continue providing updated and detailed information on the policies, programmes and measures adopted or envisaged with a view to ensuring in practice the elimination of domestic child labour. The Committee also requests the Government to provide information on the implementation of these policies, programmes and measures, including updated information on the number of inspections conducted in homes in which cases of child labour have been identified, their outcomes and the penalties imposed.

Article 5. Abuse, harassment and violence. In response to the Committee’s previous comments, the Government indicates that, in 2017, the National Labour Inspection Directorate received no complaints of cases of sexual or workplace harassment in the context of domestic work. With respect to the complaints lodged with the courts, the Committee notes the statistical information provided by the Government on the number and type of complaints lodged for harassment in 2017. However, the Government indicates that it does not have information disaggregated by the type of activity of the complainant or a record of penalties imposed on the defendant on account of the fact that, in labour matters, no such records are kept. Lastly, the Committee observes that the Government has not indicated whether it has adopted measures with a view to including in the Labour Code a definition of sexual harassment in line with the recommendations made by the Committee in its comments on the application of Convention No. 111. The Committee requests the Government to continue providing statistical information on the number of complaints lodged in the context of domestic work with the competent bodies of harassment, abuse and violence, their outcomes, the penalties imposed on the perpetrators and the compensation awarded.

Articles 6 and 9(a). Domestic workers who reside in the household in which they work. Decent living conditions which respect their privacy. In reply to the Committee’s previous comments, the Government indicates that the law guarantees that domestic workers who reside in the household for which they work enjoy decent living conditions which respect their privacy, insofar as section 105(a) of the Labour Code determines that domestic workers shall receive “adequate” housing and food. In relation to the measures adopted or envisaged to ensure that domestic workers who reside in the household in which they work are not obliged to remain in the household or with household members during periods rest or annual leave, the Government refers once again to section 105(b) and (c) of the Labour Code. These provisions recognize the right of domestic workers to at least one hour of rest per day, one day of rest per week, and 15 days of paid annual leave, or the corresponding proportion in the event that the contract is shorter than 50 weeks. The Committee observes, however, that the above-mentioned provisions do not recognize the right of domestic workers who reside in the household for which they work to not remain in the household or with household members during such periods. The Committee requests the Government to adopt the necessary measures with a view to ensuring that the “adequate” housing referred to in section 105(a) of the Labour Code includes at least a separate, private room that is suitably furnished, adequately ventilated and equipped with a lock; access to suitable and private sanitary facilities; adequate lighting; and, as appropriate, heating and air conditioning in keeping with prevailing conditions within the household, in line with the provisions of paragraph 17(a) to (c) of the Domestic Workers Recommendation, 2011 (No. 201). The Committee also requests the Government to indicate how it is ensured that domestic workers who reside in the household for which they work are not obliged to remain in the household or with household members during the periods of rest recognized in the legislation.

Article 7. Understandable information on terms and conditions of employment. In reply to its previous comments, the Committee notes the information provided by the Government in relation to the numerous information and awareness-raising actions on the rights of domestic workers carried out by several national institutions. The Government refers, among other activities, to the organization of “rights festivals” in several areas of the country, during which information materials were distributed to domestic workers with a view to informing them of their labour rights and the means to be employed in their defence. Likewise, the National Institute for Women (INAMU) provides guidance, training and information services on labour and migration issues, sometimes in collaboration with the Domestic Workers’ Association (ASTRADOMES), aimed at workers and employers in the domestic work sector. The Government adds that officials from the labour migration department of the National Employment Directorate of the Ministry of Labour took part in the above-mentioned activities and the leaflets distributed also address migration issues, thereby ensuring that migrant domestic workers are aware of their rights. The Committee also takes note of the model employment contract for the domestic work sector provided by the Government, which contains all the elements provided for in Article 7, except for the conditions of repatriation. The Committee requests the Government to continue providing updated information on the measures adopted or envisaged with a view to ensuring that domestic workers are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner, especially in relation to migrant workers. The Committee reiterates its request to the Government to provide information on the manner in which it is ensured that domestic workers are informed of the conditions of repatriation, where applicable.

Article 8(2) and (3). Bilateral, regional and multilateral agreements. Cooperation in the application of the Convention. In its previous comments the Committee suggested that the Government might consider the possibility of adopting measures to cooperate with other member States to ensure the effective application of the provisions of this Convention to migrant domestic workers. In this respect, the Government indicates that it has not implemented cooperation measures or concluded bilateral, regional or multilateral agreements providing for freedom of movement for employment for domestic work. Observing the high number of migrant domestic workers in the country, the Committee suggests that the Government might consider the possibility of adopting measures to cooperate with other member States to ensure the effective application of the provisions of this Convention to migrant domestic workers.

Article 8(4). Conditions of repatriation. The Government reports that repatriation is regulated in the national legal system for specific cases, such as repatriation for humanitarian reasons and repatriation of convicts. However, the Government indicates that there are no special regulations on the conditions of repatriation of domestic workers. In this respect, the Committee recalls that Article 8(4) of the Convention establishes that “Each Member shall specify, by means of laws, regulations or other measures, the conditions under which migrant domestic workers are entitled to repatriation on the expiry or termination of the employment contract for which they were recruited.” The Committee therefore requests the Government to adopt the necessary measures to give effect to this Article of the Convention.

Article 9(c). Right to keep possession of travel and identity documents. In its previous comments, the Committee requested the Government to provide detailed information on the manner in which it ensures in practice that domestic workers have the right to keep in their possession their travel and identity documents. The Government refers once again to section 33(2) of the General Act on migration and foreign nationals, which establishes the obligation of foreign nationals to carry, keep and present, when requested by the relevant authorities, documentation confirming their migration status in Costa Rica. In this respect, the Committee reiterates that these obligations for foreign nationals do not amount to protection of the right of domestic workers to keep their travel and identity documents. In this regard, the Government indicates that the National Directorate for Labour Inspection is the authority responsible for ensuring that domestic workers retain their travel and identity documents in practice. While recalling that the CTRN, in its 2017 observations, indicated that there are cases of employers withholding the documents of domestic workers (particularly in some regions outside the metropolitan area), the Committee requests the Government to indicate the manner in which it ensures that domestic workers keep possession of their travel and identity documents.

Article 12(2). Payments in kind. In its previous comments, the Committee noted that section 166 of the Labour Code defines payment in kind for all workers as “that received by the worker or their family in food, housing, clothing and other articles intended for their immediate personal consumption”. Section 166 also provides that “… while the value of payment in kind is not determined in each specific case, it is estimated that it is equivalent to 50 per cent of the wages in cash received by the worker”. However, the Committee noted that section 166 establishes that supplies which are of an undoubtedly free nature provided to the worker by the employer shall not be counted as payment in kind and cannot be deducted from the cash wages or taken into account when fixing the minimum wage. The Committee requested the Government to provide information on the application in practice of this Article of the Convention. The Committee notes the Government’s indication that, according to the jurisprudence concerning the definition of wages in kind, wages in kind “... consist of payment made with any good other than money, which fulfils totally or partially a need which, without the payment, the worker could only have obtained by his or her own means”. In relation to the estimated value of the payment in kind of 50 per cent of the wages, provided for in section 166 of the Labour Code, the Government indicates that the approach established in the jurisprudence is that “... the level must not be determined in isolation and once and for all, at the level of 50 per cent as indicated, but objective evaluation criteria must be established and then the percentage considered to be appropriate determined on that basis”. Moreover, the Government refers to a series of indicators that serve as a guide to determine whether a payment in kind constitutes wages or, if not, supplies of a free nature. In this regard, the Government indicates that benefits not of a remunerative nature, those which do not correspond to compensation granted to the worker by the employer for services rendered and occasional payments are not deemed to be wages in kind. Nevertheless, the Government indicates that “each individual case must be analysed in isolation, as there are no specific criteria that can be applied uniformly and each situation must be assessed in the light of its particular circumstances …”. The Committee requests the Government to indicate the objective parameters used to evaluate payments in kind referred to in the jurisprudence and to provide examples of how these parameters are applied to the evaluation of payments in kind to domestic workers. The Committee also requests the Government to provide examples of how it determines in practice whether benefits in kind granted to domestic workers are of a free nature and are therefore not considered to be payments in kind.

Article 13(1) and (2). Effective measures to ensure occupational safety and health. The Government indicates that the general provisions of the legal system governing the safety and health of workers apply to domestic workers, as well as the special insurance instruments that have been created to ensure that this protection is effective in relation to domestic workers. The Committee notes, however, that the Government has not indicated which instruments specific to the domestic work sector have been adopted in order to ensure the occupational safety and health of domestic workers in practice. The Committee notes the Government’s indication that, in practice, labour activities and workplaces in the country are supervised, involving inspection and recommendations on the conditions in all workplaces, regardless of their nature. Moreover, the Government reports that, according to statistical information from the National Insurance Institute (INS), as of 31 May 2018, there were 9,958 policies registered with the Insurance for Risks in Domestic Work. The Government adds that this policy provides insurance for a maximum of two domestic workers and, in addition, covers an occasional domestic maintenance worker who works for a maximum of three days per month and whose work is performed in the houses declared by the policy holder. The Committee requests the Government to indicate which instruments specific to the domestic work sector have been adopted in order to ensure the occupational safety and health of domestic workers in practice. The Committee also requests the Government to continue providing statistical information, disaggregated by sex, on the number of domestic workers insured under the Insurance for Risks in Domestic Work.

Article 15(1) and (2). Private employment agencies. In reply to the Committee’s previous comments, the Government indicates that the bill regulating the operation of private employment agencies did not advance beyond the preliminary draft stage and was therefore not approved. In this respect, Article 15 of the Convention specifies a number of measures which must be taken to ensure the effective protection of domestic workers, including migrant domestic workers, who are recruited or placed by private employment agencies, against abusive practices. These measures include: determining the conditions governing the operation of private employment agencies recruiting or placing domestic workers, in accordance with national laws, regulations and practice (paragraph 15(1)(a)); ensuring that adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers (paragraph 15(1)(b)); adopting all necessary and appropriate measures, within its jurisdiction and, where appropriate, in collaboration with other Members, to provide adequate protection for and prevent abuses of domestic workers recruited or placed in its territory by private employment agencies. These shall include laws or regulations that specify the respective obligations of the private employment agency and the household towards the domestic worker and provide for penalties, including prohibition of those private employment agencies that engage in fraudulent practices and abuses (paragraph 15(1)(c)); considering, where domestic workers are recruited in one country for work in another, concluding bilateral, regional or multilateral agreements to prevent abuses and fraudulent practices in recruitment, placement and employment (paragraph 15(1)(d)); and taking measures to ensure that fees charged by private employment agencies are not deducted from the remuneration of domestic workers (paragraph 15(1)(e)). The Committee requests the Government to adopt the necessary measures to give effect to this Article of the Convention and to provide information in respect of each of its provisions.

Article 16. Effective access to the courts. In reply to its previous comments, the Committee notes that the Government reports the adoption in 2010 of a judicial policy for the care of persons in a situation of vulnerability, which includes awareness-raising and training measures for judicial officials and civil society, as well as awareness-raising and promotion of the mechanisms of access to justice and labour rights that target these populations. Furthermore, the Higher Council of the Judiciary has adopted special guidelines for the care of migrants, asylum seekers and refugees designed for judicial officials. The guidelines include, among other measures, the possibility of access to care services and the services for filing reports and labour complaints for those persons considered to be in a vulnerable situation, such as pregnant or breastfeeding migrant women and young workers, whether or not they have valid documentation. In this way, access to justice is ensured for migrant workers in an irregular situation in the country and those who do not have valid documents or whose documents have been withheld by their employer. The Government also indicates that migrant workers may lodge complaints with the oversight offices of the judicial authorities regarding a lack of adequate care by the those authorities. On 25 July 2017, the amended Code of Labour Procedure entered into force, which establishes the provision of free labour advice for workers through the establishment of a labour unit staffed by social assistance lawyers affiliated with the Public Defence Service, with the objective of ensuring effective access to justice for persons in vulnerable situations, including domestic workers. Under the provisions of section 454 of the Labour Code, workers whose most recent or current monthly income does not exceed twice the basic wages for the position of administrative assistant have the right to this free legal assistance. Lastly, the Government indicates that it does not have information on the number of complaints lodged by domestic workers with the courts, as the statistics are not disaggregated by sector. The Committee requests the Government to continue providing updated information on the specific measures adopted with a view to ensuring the effective access of domestic workers to the courts. The Committee also requests the Government to adopt the necessary measures with a view to gathering updated statistical information, disaggregated by sex, on the number of complaints lodged by domestic workers with the various competent bodies, the penalties imposed on the perpetrators and the compensation awarded.

Article 17(1). Complaint mechanisms. The Government reports that several institutions, including the INAMU and the Ministry of Labour, provide legal advice and complaint resolution services. In this regard, the Legal Affairs Department of the Ministry of Labour has a system providing advice on labour issues online or by correspondence, depending on the complexity of the request. Moreover, the Labour Affairs Department, through the Alternative Dispute Resolution Unit, provides assistance for conciliation and legal advice in person and by telephone to both workers and employers on the labour rights of domestic workers. The Government reports that, between 2017 and April 2018, the Department of Labour Affairs provided services to 9,087 persons (8,757 women and 330 men) in the domestic work sector. The Committee requests the Government to continue providing updated information, disaggregated by sex, on the number of domestic workers accessing the various services for legal advice and lodging complaints.

Article 17(2) and (3). Labour inspection and sanctions. Access to household premises. In reply to the Committee’s previous comments, the Government indicates that limitations remain on entering and conducting visits to households where domestic work is performed. In this regard, the Committee notes the Government’s request for technical assistance in Communication No. MTSS-DMTS-OF-982-2018 of 24 July 2018, in the context of Convention No. 189 and the Labour Inspection Convention, 1947 (No. 81). In particular, the Government requests that a study be conducted of the national legislation and international standards with a view to identifying good practices, as well as the conditions and measures needed for inspectors to be able to freely enter, without prior notice, all workplaces, including private homes, at any time of the day or night. The Committee observes that the ILO Office for Central America, Haiti, Panama and the Dominican Republic responded to this request for technical assistance on 8 August 2018 and indicated that it would take the necessary steps to provide that assistance. Furthermore, the Committee notes the Government’s indication that, according to statistics from the National Inspection Office, between January 2017 and June 2018, some 129 violations were detected in the domestic work sector, most of which involved the illegal dismissal of pregnant workers (41 cases) and the failure to register workers with the Occupational Risk Insurance Scheme (16 cases) and the CCSS (15 cases). The Committee requests the Government to continue providing information on the measures adopted or envisaged regarding labour inspection, as well as information on the application of standards and penalties that take due account of the special characteristics of domestic work. Noting the Government’s request for technical assistance in relation to labour inspections in private homes, the Committee hopes that the Office will provide the requested technical assistance.

Application of the Convention in practice. The Committee notes that, according to the National Institute of Statistics and Censuses (INEC), in the first quarter of 2018, there were 117,723 domestic workers, of whom 87 per cent were women. The Government indicates that 108,156 persons work in the domestic work sector on a permanent basis and 9,567 on an occasional basis. The Government adds that 69,365 persons work part-time (fewer than 40 hours), while 48,265 persons work full-time. The Committee also takes note of the extracts of court decisions provided by the Government, in which the court determined the existence of an employment relationship of persons performing domestic service work. The Committee requests the Government to continue providing updated general indications on the manner in which the Convention is applied in Costa Rica and to provide extracts of inspection reports, court decisions and, when such statistics exist, data on the number of workers covered by the measures which give effect to the Convention, disaggregated by age and sex, and the number and nature of the violations recorded.