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Domestic Workers Convention, 2011 (No. 189) - Ecuador (RATIFICATION: 2013)

Other comments on C189

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The Committee notes the observations made by the Association of Paid Household Workers (ATRH), received on 3 September 2018. The Committee requests the Government to provide its comments in this regard.

Article 1 of the Convention. Definition of domestic work and domestic worker. Occasional or sporadic domestic workers. In its previous comments, the Committee noted that section 262 of the Labour Code defines domestic service as “that which is provided, for remuneration, to a person seeking only to make use of the ongoing services of the worker on a not-for-profit basis in the personal or family residence, whether or not the worker resides in or outside the employer’s household”. In this regard, the Committee noted that the inclusion of the term “ongoing services” implies that discontinuous or sporadic domestic service is not considered to be domestic work. Moreover, it noted that section 17 of the Labour Code envisages continuous or discontinuous casual contracts, occasional contracts and seasonal contracts as contractual arrangements for a fixed period of time, while section 265 provides that the contract for domestic work is for an indefinite period. In this respect, the Committee recalled that, irrespective of the type of contract covering workers who provide domestic services, the definition of domestic worker set out in Article 1 of the Convention only excludes persons who perform domestic work occasionally or sporadically and not on an occupational basis. The Committee therefore requested the Government to indicate the manner in which it is ensured that persons who perform domestic work occasionally or sporadically, but who do so on an occupational basis, benefit from the guarantees set out in the Convention. The Committee notes that the Government has not provided information on this subject in its report. The Committee also notes that, in its observations, the ATRH indicates that the term “domestic work” has discriminatory connotations in the socio-cultural context of Ecuador and considers that the term “paid household work” is more appropriate to the objective of guaranteeing the dignity and respect for the rights of workers in the sector in the country. The Committee recalls that the International Labour Conference, during the preparatory work for the domestic work instruments, clarified that the expression “trabajadora o trabajador del hogar” (household worker) is synonymous with “domestic worker”. ¹ The Committee once again requests the Government to indicate the manner in which it is ensured that persons who perform domestic work occasionally or sporadically, but who do so on an occupational basis, are covered by the guarantees established in the Convention.

Article 3(2)(a) and (3). Freedom of association and effective recognition of the right to collective bargaining. In its observations, the ATRH indicates that, due to the imposition of certain requirements for the establishment of unions (including the required number of workers (30) to establish associations), the right to organize of domestic workers is limited. The Committee referred previously to its 2015 observation on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which it considered that this number was excessive and requested the Government to amend the relevant legislation. The Committee notes the discussion in the Committee on the Application of Standards on the application of Convention No. 87 at the 106th Session (2017) of the International Labour Conference. In particular, the Committee notes that the Committee on the Application of Standards requested the Government to initiate a process of consultation with the most representative employers’ and workers’ organizations to identify how the current legislative framework needs to be amended in order to bring all the relevant legislation into compliance with Convention No. 87. The Committee notes the Government’s indication in its report that section 440 of the Labour Code establishes the right to freedom of association of all workers and employers, without distinction whatsoever and without the requirement for prior authorization. It also reports the approval in 2016 of Ministerial Decision No. 142 which established the Single National Union of Paid Household Women Workers (SINUTRHE). However, the Committee notes that the ATRH complains of the persistence of the limitations referred to on the establishment of unions, including by domestic workers. In this regard, the Committee recalls that the specific characteristics of domestic work, which in many cases include a high degree of dependence on the employer (particularly in the case of migrant domestic workers) and the frequent isolation of domestic workers in their workplaces, are factors which make it particularly difficult for domestic workers to establish and join unions. The protection of freedom of association and the right to collective bargaining is therefore of special importance in this sector and it is necessary to adopt measures to guarantee these rights of domestic workers in both law and practice. The Committee refers once again to its comments on the application of Convention No. 87, and particularly those in which it trusted that the current legislative reform would contribute to the reform of the various provisions of the Labour Code to lower the minimum number of members required to establish workers’ organizations. The Committee also requests the Government to provide detailed and updated information on the measures adopted or envisaged to promote and guarantee in practice the right of domestic workers to freedom of association and collective bargaining.

Articles 3(2)(c) and 4. Child labour. The Committee notes that the minimum age for domestic work is 15 years, in accordance with the provisions contained, among others, in section 262, third subsection, of the Labour Code and section 82, first subsection, of the Code of Children and Young Persons. Moreover, Ministerial Decision No. MDT-2015-0131 of the Ministry of Labour, issuing the list of hazardous types of work for young persons, explicitly prohibits domestic work by young persons who reside in the household. Section 5 of the Ministerial Decision also requires the progressive elimination of domestic work by young persons who do not reside in the household. The ATRH observes that, although the Ministerial Decision represents great progress in legal terms, it is necessary to adopt additional measures in collaboration with the social partners and to establish effective supervisory mechanisms through labour inspection and the imposition of adequate sanctions for violations of the legislation prohibiting child domestic work with a view to ensuring its elimination in practice. The Committee requests the Government to provide detailed and updated information on the measures adopted or envisaged with a view to ensuring the abolition in practice of child domestic work. It also requests the Government to provide information on the impact of Ministerial Decision No. MDT-2015-0131 on the elimination of domestic work by young persons residing in the household. The Committee further requests the Government to provide information on the number of complaints of child domestic work reported, the penalties imposed on those responsible and the compensation granted to the victims.

Article 5. Abuse, harassment and violence. The Committee notes the Government’s information that Article 331(2) of the Constitution of the Republic of Ecuador prohibits any form of discrimination, harassment or acts of violence of any type, whether direct or indirect, affecting women at work. The Government adds that section 166 of the Basic Comprehensive Penal Code (COIP) criminalizes sexual harassment. In 2017, the Act was adopted to prevent and eradicate violence against women, which includes the workplace among the areas in which violence is committed against women. In particular, section 12(3) of the Act provides that the working environment “includes the labour context in which the right to work is exercised and where productive activities are undertaken, in which violence is committed by persons who have a labour relation or work with the victim, irrespective of the hierarchical relationship. It includes: making recruitment or job retention conditional upon favours of a sexual nature; the refusal to recruit the victim or agree to her retention in work or general conditions of work; public discredit through the work performed and denial of access to equal remuneration for equal work or functions: and the refusal to grant women time off for pregnancy and nursing.” The Act sets out protection measures in cases of violence, which can be applied by the courts, and measures of an administrative nature which can be ordered by Cantonal Boards. The Committee notes that, according to the statistics of the Office of the Public Defender, of the total of 300 investigations completed, 65 per cent were related to violence against women domestic workers. Nevertheless, the Committee notes that specific measures have not been adopted to ensure in practice the effective protection of domestic workers, both women and men, against any form of abuse, harassment and violence. In this regard, the ATRH emphasizes the need to set up a direct telephone line to enable domestic workers to make complaints in cases of abuse and ill-treatment with a view to obtaining a response and an immediate solution from the competent authority. The Committee requests the Government to provide detailed and updated information on the measures adopted or envisaged with a view to ensuring in practice the effective protection of domestic workers against any form of abuse, harassment or violence. The Committee also requests the Government to provide statistical data, disaggregated by sex, on the number of complaints received of harassment, abuse and violence in the context of domestic work, which have been made to the various competent bodies, their outcome, the penalties imposed on those responsible and the compensation granted.

Articles 6 and 9. Domestic workers who reside in the household. Decent living conditions that respect their privacy. Freedom of movement during periods of daily and weekly rest or annual leave. In reply to the Committee’s previous comments, the Government indicates that section 268 of the Labour Code provides that “in addition to the remuneration determined, it is the duty of the employer to provide the domestic worker with food and accommodation, unless agreed to the contrary …”. The Committee notes that the ATRH emphasizes the importance of domestic workers having private accommodation in order to prevent acts of violence, harassment, physical attacks and sexual harassment by the employer or persons close to the employer. The ATRH adds that measures must be adopted with a view to ensuring that the employer provides reasonable notice for domestic workers in respect of the termination of the employment relationship for faults that are not serious, so that they can seek new employment and/or accommodation, in accordance with Paragraph 18 of Recommendation No. 201. Finally, the Committee notes that the Government has not provided information on the manner in which the freedom of movement of domestic workers is ensured during periods of daily and weekly rest or annual leave. The Committee requests the Government to adopt the necessary measures with a view to ensuring that the accommodation that the employer shall provide to domestic workers under the terms of section 268 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 private sanitary facilities; adequate lighting; and, as appropriate, heating and air conditioning in keeping with prevailing conditions within the household, in accordance with Paragraph 17(a) to (c) of Recommendation No. 201. The Committee also requests the Government to take the necessary measures to ensure that domestic workers whose employment relationship is being terminated for faults that are not serious have reasonable notice to seek new employment and/or accommodation. Furthermore, it requests the Government to indicate the manner in which it is ensured that domestic workers who reside in the household are not obliged to remain in the household or with household members during the periods of rest recognized in the legislation.

Article 7. Easily understandable information on terms and conditions of employment. In its previous comments, the Committee noted the Government’s indication that a draft ministerial decision was being drawn up which would contain a chapter on the minimum provisions to be contained in employment contracts in the domestic work sector. The Committee trusted that the draft decision would duly take into account the provisions of Article 7 of the Convention. However, the Committee notes that the Government has not indicated whether the draft ministerial decision has been adopted. The ATRH indicates that many paid household workers are without contracts. The Committee notes the various measures proposed by the ATRH with a view to ensuring that domestic workers understand their terms and conditions of employment. Among other measures, the ATRH emphasizes the need to prepare and disseminate a model contract for domestic work and to establish the requirement to register contracts of employment with the competent authority. It adds that it is necessary to conduct awareness raising and information campaigns in a language and format that is easily understandable for all paid household women workers concerning their rights, as well as complaint procedures and the legal remedies to which they have access. The Committee also notes that section 262(2) of the Labour Code provides that what is not set out in the contract shall be determined in accordance with local custom. In this regard, the Committee recalls that Article 7 of the Convention provides that measures shall be taken to ensure that domestic workers are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner and preferably, where possible, through written contracts in accordance with national laws, regulations or collective agreements. Accordingly, the Convention does not envisage local custom as a source of legal provisions governing the terms and conditions of employment of domestic workers. The Committee requests the Government to adopt the necessary measures 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. In this regard, the Committee requests the Government to adopt the necessary measures with a view to establishing a model contract of employment for domestic work, in accordance with Paragraph 6 of Recommendation No. 201, and to provide a copy of the model contract to the ILO when it has been adopted. It also requests the Government to take the necessary measures to amend section 262(2) of the Labour Code to ensure that the terms and conditions of employment of domestic workers are always established in accordance with the national legislation or collective agreements.

Article 9(c). Right of domestic workers to keep in their possession their travel and identity documents. With reference to migrant workers, the Government indicates that section 159 of the Basic Act on Human Mobility prohibits the retention of the travel documents of any person who enters, leaves or remains on the territory of Ecuador, except in cases when they are demonstrated to be false or void. Section 13 of the Act defines travel documents as those documents acceptable as proof of identity of persons entering a country other than their own. However, the Committee notes that the Government has not provided information on the manner in which it is ensured that national domestic workers have the right to keep in their possession their travel and identity documents, nor the manner in which it is ensured that migrant domestic workers have the right not only to keep in their possession their travel documents, but also their identity documents. The Committee therefore requests the Government to provide detailed information on the manner in which it is ensured in practice that all domestic workers, including national domestic workers, have the right to keep in their possession their travel and identity documents.

Article 11. Minimum wage coverage. The Committee notes that, under the terms of the Minimum Wage Act, the minimum wage of domestic workers has been brought into line with that of other employed persons since 2010. Between 2012 and 2018, the minimum wage was increased from US$275 to US$386 for 40 hours of work a week. However, the ATRH indicates that, although the law requires the payment of the minimum wage to paid household workers, in practice it is necessary to provide guidance and education to employers and workers with a view to ensuring that employers comply with the legal requirement and workers demand the labour rights. The Committee requests the Government to provide detailed and updated information on the measures adopted with a view to ensuring in practice that domestic workers are covered by the established minimum wage. It also requests the Government to provide statistical data, disaggregated by sex and age, on wage trends for domestic workers. The Committee further requests the Government to provide copies of court rulings in cases of failure to comply with the requirement for employers to pay domestic workers the minimum wage.

Article 13. Effective measures to ensure occupational safety and health. In reply to the Committee’s previous comments, the Government indicates that on 13 September 2017 the Directorate of Occupational Safety and Health and Comprehensive Hazard Management participated in an inter-institutional meeting, together with the SINUTRHE, in which a road map was approved for action in relation to occupational safety and health in the domestic work sector. However, the Government adds that it has not been possible to implement the road map due to disagreements within the SINUTRHE. The Government adds that the Directorate of Occupational Safety and Health and Comprehensive Hazard Management is gathering information on good practices in other countries with a view to providing guidance on occupational safety and health for domestic workers. In its observations, the ATRH indicates that it is necessary to adopt specific legislation, conduct awareness-raising campaigns and develop an information guide on the risks faced by paid household workers in the workplace. The Committee requests the Government to provide detailed and updated information on the measures adopted or envisaged with a view to ensuring the occupational safety and health of this category of workers, with due regard for the specific characteristics of domestic work, in accordance with the Convention.

Article 14. Access to social security. The Government indicates that Article 369 of the Constitution of the Republic of Ecuador provides that compulsory universal insurance shall be extended to the whole of the urban and rural population, irrespective of their employment situation. Section 242 of the Basic Comprehensive Criminal Code (COIP) establishes the penalty of imprisonment for between one and three years for the unlawful retention of social security contributions. Section 244 of the COIP also provides for prison sentences of between three and seven days for employers who do not register their workers with the compulsory social security scheme. The Committee notes that, based on data from the Ecuadorian Social Security Institute (IESS), in February 2018 there were 61,592 domestic workers registered, 88 per cent of whom were women. However, the ATRH indicates that the number of paid household workers who are not registered with the IESS is very high in the country. In this regard, the ATRH considers that measures need to be adopted to control compliance by employers with the requirement to register their domestic workers with the IESS. The Committee requests the Government to provide detailed information on the measures adopted or envisaged with a view to promoting the registration of domestic workers with the social security system, such as information campaigns on the right of domestic workers to have access to social security and inspection campaigns to supervise compliance with the obligation for employers to register their domestic workers with the Ecuadorian Social Security Institute. The Committee also requests the Government to provide updated statistical data, disaggregated by sex and age, on the number of domestic workers registered with the Ecuadorian Social Security Institute.

Article 15(1)(b). Machinery and procedures for the investigation of fraudulent practices by private employment agencies. In its previous comments, the Committee noted the information provided by the Government concerning a meeting of a policy forum on the rights of paid household workers, attended by representatives of the Government and the ATRH, in which it was decided to review the regulations on the functioning of private employment agencies with a view to increasing control over them. The Committee requested the Government to provide information on any developments in this regard. However, the Committee notes that the Government has not provided information on this subject. The ATRH indicates that such control is difficult in practice, as there are no precise data on the number of employment agencies operating in the country, or the number of paid household workers who make use of their services. The Committee once again requests the Government to provide information on the measures adopted or envisaged to review, in collaboration with the social partners, the regulations on the functioning of private employment agencies with a view to exercising increased and effective control over them in the domestic work sector.

Article 16. Access to justice. In its observations, the ATRH emphasizes the low number of complaints made to the courts by domestic workers due to their lack of knowledge of their rights and the lack of resources to be able to have access to justice. It adds that, although following the adoption of the General Basic Procedural Code, more flexible procedures have been established for the application of justice, it is also necessary to make the procedures followed by the administrative labour authorities more flexible, as they are the first authorities to receive complaints and denunciations before court proceedings are initiated. The Committee requests the Government to specify the various remedies to which domestic workers have access and to indicate the measures adopted or envisaged by the Government to facilitate the access to justice of men and women domestic workers in relation to the various remedies.

Article 17(1). Complaint mechanisms. The Committee notes that, according to the information compiled by the regional departments of the Ministry of Labour, between 2016 and May 2018, a total of 1,387 complaints were made concerning violations of the rights of domestic workers. Most of the complaints alleged the failure to pay wages, non-compliance with the requirement of registration with the IESS or unjustified dismissal. The Committee also notes that the ATRH reiterates its previous observations, in which it emphasized the need to guarantee flexible and easily understandable complaint mechanisms, to provide competent legal advice in places where complaints are lodged and to build the capacities of the officials responsible for receiving complaints and of inspectors on the specific characteristics of the sector, with a view to ensuring compliance with the labour laws established for this category of workers. The Committee further notes the reports by the ATRH of the persistent difficulties faced by domestic workers in lodging complaints. Among other obstacles, the ATRH explains that, when lodging complaints, domestic workers are requested to provide information that is sometimes not within their knowledge, such as the email address and the work telephone number and address of their employer. The Committee requests the Government to provide detailed and updated information on the measures adopted or envisaged to ensure the access of domestic workers to effective complaint mechanisms, including legal advice and information on accessible procedures and mechanisms in a form and language that is easily understandable by all domestic workers, including indigenous domestic workers. The Committee also requests the Government to provide information on the number of complaints made by domestic workers to the various competent bodies, their outcome, the penalties imposed on those responsible and the compensation granted in cases of violations.

Article 17(2) and (3). Labour inspection and penalties. Access to household premises. In its previous comments, the Committee noted the wide-ranging awareness-raising and information campaigns undertaken, as well as the home inspections undertaken in various urban areas with a view to informing domestic workers of their labour rights. It also noted the observations of the ATRH, in which it emphasized the need to: establish mechanisms to monitor the payment of holidays and compliance with the payment of minimum wages (particularly in provincial rural areas); strengthen registration and notification procedures for occupational accidents and diseases in paid household work; and enforce the compensation process in the event of occupational accidents and diseases. In this regard, the Committee requested the Government to provide information on the impact of the awareness-raising and information campaigns and on the planned follow-up action. The Government indicates that labour inspections in the domestic work sector are conducted as a result of complaints by workers to the provincial departments of labour and the public service. The Government adds that only comprehensive inspections are carried out at the initiative of the inspection services. In this regard, the ATRH reiterates its earlier observations and emphasizes the need to increase the number of comprehensive labour inspections in the domestic work sector. The ATRH also complains that, during labour inspections in the paid household work sector, inspectors only meet the employer. The ATRH emphasizes that this leaves domestic workers in a defenceless position and places their employment situation at risk as, in many cases, when complaints are made, employers engage in reprisals against their workers. The ATRH also denounces the fact that training, supervision and evaluation measures have not been implemented for labour inspectors engaged in inspections in the domestic work sector with a view to eliminating potential discriminatory approaches. Finally, the ATRH indicates that, despite its participation with the Government in the preparation of a pilot project for inspections in the paid household work sector, it has not yet been implemented. The Committee requests the Government to provide updated and detailed information on the measures adopted or envisaged with a view to giving effect in practice to labour inspection measures, having due regard for the special characteristics of domestic work, in accordance with the national legislation. In this regard, while noting the complexity of labour inspection in the private residences in which domestic workers are engaged, the Committee reminds the Government of the possibility of requesting ILO technical assistance in this respect. The Committee also requests the Government to provide updated information on the number of inspections in the sector, the number of infringements detected and the penalties imposed.

End Note

1 - ILO: Provisional Record No. 15, International Labour Conference, 100th Session, Geneva, June 2011, para. 179.