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

Other comments on C189

Direct Request

2022
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Article 1 of the Convention. Definition of domestic work and domestic worker. The Government reiterates that Irish employment law does not treat domestic workers as a separate category of worker and that employment rights legislation in Ireland applies to all workers who are working under a contract of employment (written or verbal), on a full-time or part-time basis, including legally employed domestic workers. The Government reiterates that domestic workers are covered by the Code of Practice for Protecting Persons Employed in Other People’s Homes (hereinafter the Code of Practice). Pursuant to the Code of Practice, an “employee” means a person who is employed in the home of another person, in accordance with the provisions of the Code of Practice for Determining Employment or Self-Employment Status of Individuals. Moreover, the Committee observes that, in defining the term “domestic worker”, the booklet published by the Workplace Relations Commission (WRC) on the employment rights of domestic workers in Ireland refers to the definition of worker in the national legislation as well as to the definition of domestic work and domestic worker established in Article 1(a) and (b) of the Convention. The Committee nevertheless notes that the Government once again provides no information on the manner in which it is ensured that persons who perform domestic work occasionally or sporadically, but do so on an occupational basis, are covered by the guarantees established in the Convention. In this respect, the Committee recalls that the definition of a domestic worker established in Article 1 of the Convention only excludes sporadic workers when they do not perform domestic work on an occupational basis. The Committee draws the Government’s attention to the preparatory work for the Convention, which indicates that this the wording of Article 1(c) was included in this provision for the purpose of ensuring that day labourers and similar precarious workers would be covered by the definition of domestic worker (see Report IV (1), International Labour Conference, 100th Session, 2011, page 5). The Committee therefore reiterates its request that the Government indicate in what manner it ensures that persons who perform domestic work occasionally or sporadically, but do so on an occupational basis, are covered by the guarantees established in the Convention.

Au pairs. In its previous comments, the Committee noted the observations of the Irish Congress of Trade Unions (ICTU), in which the ICTU expressed concerns in relation to the situation of au pairs in Ireland. The ICTU pointed out that, while au pairs are recognized by the Government as domestic workers, they are nevertheless portrayed by au pair agencies as not having the status of workers and are proposed by agencies to their clients as a cheap childcare solution. The ICTU therefore called on the Government to launch an information campaign to raise awareness among the public that au pairs are in fact covered by employment legislation. The Committee observes that the Government’s report does not respond to the ICTU observations. The Committee thereforerequests the Government to provide updated information on the measures taken to ensure compliance with the national employment legislation with respect to au pairs working in Ireland.

Article 3(2)(a). Freedom of association and collective bargaining. The Government indicates that workers’ rights to freedom of association and to organize and bargain collectively are recognized in the national legislation. It adds that the Government promotes collective bargaining not only through national legislation, but also through an institutional framework supportive of a voluntary system of industrial relations that is premised upon freedom of contract and freedom of association. The Government adds that sections 1.2 and 5.12 of the Code of Practice prohibits domestic employers from restricting domestic workers’ right to join a trade union. In addition, the Government indicates that the WRC provides a number of services, including advisory, conciliation and adjudication services which are available to all workers, including domestic workers. The Committee requests the Government to continue 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.

Article 3(2)(d). Elimination of discrimination in respect of access to employment. In its previous comments, the Committee once again urged the Government to take the necessary measures to amend section 2 of the Employment Equality Acts 1998–2015 (EEA), which exclude “persons employed in another person’s home for the provision of personal services for persons residing in that home where the services affect the private or family life of such persons”, thereby enabling employers of domestic workers to make recruitment decisions on discriminatory grounds. The Committee notes the Government’s indication that a review of the Equality Acts is being carried out by the Minister for Children, Equality, Disability, Integration and Youth. The review examines, among other issues, the Acts’ effectiveness in combatting discrimination and promoting equality, as well as the degree to which those experiencing discrimination are aware of the legislation and its provisions, and whether there are practical or other obstacles which preclude or deter them from taking action under the Acts. The Government observes that the process of review included a public consultation in 2021. It indicates that the recommendations that arise from the review could take the form of recommendations for legislative changes, recommendations for policy development, or recommendations for changes to be made to the practical operation of the redress mechanisms. The Committee requests the Government to provide updated information in its next report on the scope, the status and the results of the review of the Equality Acts. In this context, the Committee trusts that the Government will take steps without delay to amend section 2 of the Employment Equality Acts 1998–2015 (EEA) to ensure that domestic workers are effectively protected against discrimination in employment and occupation, including in respect of access to and terms and conditions of employment.

Articles 3(2)(b) and 5. Forced or compulsory labour. Abuse, harassment and violence. The Government indicates that the Safety, Health and Welfare at Work Act, 2005 places duties on employers to ensure, so far as is reasonably practicable, employees’ safety, health and welfare at work, including with respect to violence and aggression at work. The Government indicates that all complaints received by the Health and Safety Authority (HSA) are reviewed and followed up as appropriate. Follow up measures range from first line interventions (transmission of a letter to the employer requesting information) to inspections. The Government reports that, over the last ten years, the HSA has received notification of 294 non-fatal incidents caused by shock, aggression or violence to a worker in a domestic setting (57 per cent of those injured in these incidents were men). However, no statistical data is available to enable a determination of whether or how many of these incidents involved domestic workers. The Government indicates, after reviewing the Committee’s request for statistical information on complaints filed by domestic workers referring to abuse, harassment and violence, that WRC systems do not capture the information requested under this specific heading. It indicates that 67 complaints were filed in which the complainant indicated that the position held was “domestic worker”; however, the complaints refer to other matters, such as pay, hours of work, terms and conditions or employment, unfair dismissal or other grounds. The Government also reports that some complainants may not self-identify as domestic workers. The Committee notes the information provided by the Government on the procedures followed and measures taken by the police (An Garda Síochána) in identified cases of human trafficking. The Committee notes that, according to the Assistant Commissioner of Organised and Serious Crime (hereinafter the Assistant Commissioner), human trafficking for labour exploitation of workers, both documented and undocumented, is an offence under the Criminal Justice (Human Trafficking) Act of 2008, as amended. When a suspected case of human trafficking is discovered by An Garda Síochána, particular emphasis is placed on assisting the victims and prioritizing their removal from circumstances of vulnerability, control and threat imposed by the perpetrators of such criminal offences. An Garda Síochána assesses each victim and incident on its own merits and, where a positive assessment is made regarding the existence of indicators of human trafficking, the investigating member of An Garda Síochána will ensure that the potential victim of human trafficking is entered into the National Referral Mechanism (NRM) and offered the associated services. The NRM provides a channel for all agencies, both State and civil society, to cooperate, share information about potential victims, identify those victims and facilitate their access to advice, accommodation and support. The NRM is a system to ensure that potential victims have their basic needs met in the initial period after the referral in terms of the provision of accommodation, food and healthcare, including psychological care, legal aid services and the granting of residency permits. The Assistant Commissioner reports that, between 2019 and 2021, nine cases of human trafficking were identified in which the victims were women engaged in domestic work. The Committee requests the Government to continue to provide detailed updated information on the nature, the scope and the impact of the measures adopted to ensure that domestic workers, both documented and undocumented, are effectively protected against all forms of abuse, harassment and violence.In this respect, the Government is requested to provide statistical data, disaggregated by sex and age, on the number of complaints of harassment, abuse and violence received by the various state authorities in the context of domestic work, their outcome, the penalties imposed on those responsible and the compensation granted. In addition, the Committee requests the Government to provide detailed updated information on the nature and impact of measures taken to prevent human trafficking in the domestic work sector.

Article 7. Information on terms of employment. The Committee notes with interest that the Code of Practice sets out the rights of persons employed in private homes, including domestic workers. This information is available on the website of the Workplace Relations Commissioner as well as in downloadable booklets. The Government indicates that the website and its contents are available in 108 languages. The website also includes templates of employment records forms which are downloadable for employers’ use. In addition, the WRC provides information by telephone and email on employment rights during working hours as well as recorded information available outside of working hours. In 2021, the WRC handled close to 56,000 telephone queries. The Committee nevertheless notes that no statistical information is available on the number of queries concerning domestic workers. The Committee requests the Government to continue to provide updated detailed information on the measures taken to ensure that domestic workers are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner. It also invites the Government to provide updated information on any developments in relation to the application of this Article.

Article 8. Migrant domestic workers. The Government reiterates that Ireland’s employment legislation protects all employees, including migrant workers, who are legally employed on the basis of a contract of service. The Government’s stated policy is to promote the sourcing of labour and skills needs from within the workforce of Ireland, the European Union (EU) and other European Economic Area (EEA) States. The Government indicates that the employment permit system is designed to accommodate the arrival of non-EEA nationals to fill skills and labour gaps for the benefit of the economy, as well as to ensure that the employment rights of migrants are observed. The Employment Permits Acts ensures the protection of migrant workers’ rights by, inter alia, ensuring that there is a written contract of employment in place; ensuring that the permit holder receives the original copy of the employment permit; prohibiting deductions for expenses incurred in respect of the employment permit application process from the employee’s remuneration; and setting minimum remuneration levels. The WRC’s investigation and enforcement powers serve to discourage abuses of the employment permits system by employers. The Committee nevertheless observes that occupations in private homes are included on the Ineligible Occupations List for Employment Permits and that, as a result, non-EEA nationals are not eligible to receive employment permits for the purposes of domestic work. The Government adds that the regulations provide for an exception to be made only in the case of an application for employment as a carer in a private home under specific conditions (for instance, where it can be demonstrated that the applicant has a long history of caring for the person requiring the care). The Committee observes, however, according to information available on the website of the Citizens Information Board, that many domestic workers in Ireland are migrant workers, often from outside the EEA. In addition, the booklet on Employment Rights of Domestic Workers in Ireland published by the WRC refers to “immigration permission permitting non-EEA nationals to work” in the context of domestic work. In its observations, the ICTU indicates that, given that there has been no employment permit for the domestic work sector since 2009, some domestic workers have found themselves classified as undocumented through no fault of their own. In relation to the number of cases brought by undocumented migrant domestic workers (those who had no permission to work) to regularize their status under section 4 of the Employment Permits Amendment Act of 2014, the Government indicates that no cases were submitted by migrant domestic workers in this respect during the reporting period. Only one case was submitted by the WRC, which was resolved before legal action was taken, with the worker receiving compensation. In its previous comments, the Committee noted the observations of the ICTU, in which it indicated that there is evidence to show that undocumented workers are generally not willing to seek justice through state authorities, as they face risks of detection and deportation. It adds that clear and safe reporting mechanisms for undocumented domestic workers are needed to protect those who are victims of exploitation and crime. Lastly, the Committee observes that the Government once again does not indicate how it is ensured that migrant domestic workers recruited for domestic work in Ireland receive a written job offer or contract of employment prior to crossing national borders (Article 8(1)). Nor does the Government provide information on the laws, regulations or other measures that specify the conditions under which migrant domestic workers are entitled to repatriation on the expiry or termination of their employment contract (Article 8(4)).The Committee requests the Government to provide detailed updated information on measures taken or envisaged to enable migrant domestic workers, including non-EEA nationals, to be eligible to receive work permits for the performance of domestic work, providing that they have complied with all other requirements under Irish legislation. It also requests the Government to provide updated information on the number of migrant domestic workers legally working in the country, both nationals of EEA States and non-EEA nationals. In light of the information available on the website of the Citizens Information Board indicating that many migrant domestic workers in Ireland are from non-EEA countries and the employment permit requirements for non-EEA nationals described above, the Committee requests the Government to indicate the nature and impact of measures taken to prevent recourse to undeclared work in the domestic sector, notably of domestic workers from non-EEA countries. The Committee once again requests the Governmentto indicate the manner in which it is ensured that migrant domestic workers recruited for domestic work in Ireland receive a written job offer or contract of employment prior to crossing the border. It also reiterates its request that the Government indicate the laws, regulations or other measures that specify the conditions under which migrant domestic workers are entitled to repatriation on the expiry or termination of their employment contract.

Article 12(2). Payment in kind. The Committee notes the Government’s indication that domestic workers are not exempted or treated as a separate category of worker under Irish employment law and are therefore entitled to the national minimum wage. The Government refers to section 5.7 of the Code of Practice, which provides that an employer may make deductions from wages where the employee is provided with meals and/or lives in the place of employment. The Government indicates that if a worker receives board and lodging as part of his or her employment, the employer can deduct the value of this benefit from their wages. The Government adds that the deduction must be fair and reasonable, it must be stated in the contract of employment and the worker must be given written notice of the deduction. The Committee notes the Government’s indication that rates for board and lodging rates have continued to increase as a component of the national minimum wage. In this respect, the Government indicates that, as of 1 January 2022, the maximum deductions allowed for board and lodging were set at €0.94 per hour worked for board and €24.81 per week (or €3.55 per day) for lodging. The Committee takes note of the information supplied by the Government, which responds to the points previously raised.

Article 13. Effective measures to ensure the safety and health of domestic workers. The Government indicates that the rights of domestic workers in relation to occupational health and safety (OSH) protections are the same as for other workers. The Government adds that a health and safety concern by a domestic worker can be raised with the Health and Safety Authority (HAS) in the same manner as by other workers. It adds that the HAS published an information sheet on OSH in 2017 for employers and employees providing formal care for vulnerable elderly people in their own homes. The Committee nevertheless notes that the Government does not indicate whether or which employers’ and workers’ organizations were consulted on the development and implementation of OSH measures in relation to domestic workers. The Committee requests the Government to continue 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. It also reiterates its request that the Government indicate the organizations of employers and workers consulted with respect to the development and implementation of such measures.

Article 15. Private employment agencies. The Government indicates that the Employment Agency Act, 1971 requires all employment agencies to be licensed. It reports that that 820 Employment Agency licences were issued in 2021 (an increase of 12 per cent compared with 2020). The Government reiterates that the WRC carries out inspections to ensure that private employment agencies are operating in accordance with the provisions of the Act. The Committee nevertheless observes that the Government does not provide information on the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers, including migrant domestic workers. The Committee therefore reiterates its request that the Government provide detailed updated information on the number, the nature and the outcome of complaints brought concerning alleged abuses and fraudulent practices of private employment agencies in relation to domestic workers, including migrant domestic workers and au pairs.

Articles 16 and 17(1). Effective access to courts, tribunals or other dispute resolution mechanisms. Complaint mechanisms. The Government indicates that, in the event that an employer is alleged to be in breach of employment law, a number of enforcement options are available depending on the underlying legislation. Breaches involving employment records, the minimum wage, working without legal permission and failure to cooperate with a labour inspector may result in criminal prosecution. Breaches of working time, payment of wages, and other legislation can initially attract a Compliance Notice. A subsequent failure to remedy the violation may also result in criminal prosecution. In some cases, a fixed penalty notice may be issued in lieu of prosecution. The Committee notes the Government’s indication that domestic workers can make a confidential complaint to WRC inspectors, which will trigger an investigation. Alternatively, workers may choose to present a complaint to a WRC adjudicator. The Committee reiterates its request that the Government provide information on decisions rendered by courts of law or other dispute resolution mechanisms involving questions of principle relating to the application of the Convention.It also requests the Government to provide updated information on the number of complaints lodged by domestic workers with the various competent bodies, the penalties imposed on those responsible for violations, and the compensation granted, if any.

Article 17. Labour inspection and penalties. Access to household premises. The Committee notes the Government’s indication that the particularly vulnerable situation of domestic workers has been recognized by the WRC and enhanced procedures are in place in respect of labour inspections in the domestic work context. These procedures provide for the option of conducting the inspection or interview of the parties in a setting other than the private household; the provision of interpretation services as needed; the dissemination of multilingual cards with information on how to contact the WRC confidentially; and providing inspectors with training on how to detect indicators of human trafficking. The Government indicates that the Labour Inspectorate has been carrying out inspections in private homes since 2011. Between 2011 and 2021, 229 inspections involving 89 domestic workers were carried out, resulting in over €48,499 in unpaid wages being recovered for employees and significant awareness-raising of the rights of domestic workers (including au pairs) among the public. Nevertheless, the Committee observes that, according to information provided by the Government, while in 2021, labour inspectors concluded 7,687 workplace inspections, only two were related to domestic work (in both cases the employers were found to be non-compliant and €325 in arrears of wages were recovered for the employees). Moreover, the Government indicates that an inspection and awareness campaign is envisaged during 2022, covering persons who are directly employed by households. This action is aimed at the various occupations involved in household work, such as cleaning, childcare, dependent/elderly assistance, cooking, gardening, tutoring and au pairing. The Labour Inspectorate also assisted the Department of Foreign Affairs with the development of guidelines and procedures to ensure respect for the employment rights of private domestic employees working in diplomatic households. Noting the low number of inspections carried out in the domestic work sector, the Committee requests the Government to provide detailed updated information on the measures envisaged or taken to increase the number of labour inspections in the domestic sector. It also requests the Government to continue to provide updated detailed information, including statistical information, on the number of inspections carried out in the domestic work sector, the number and type of violations detected and the remedies granted.