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 first report provided by the Government. The Committee also notes the observations of the Confederation of Workers Rerum Novarum (CTRN), received on 26 September 2016, and the Government’s reply, received on 6 January 2017.

Article 1(1)(c) of the Convention. Occasional or sporadic domestic workers. Section 101 of the Labour Code defines “domestic servants” as those “who provide assistance and welfare to a family or person, in return for payment; they dedicate themselves regularly and systematically to the work of cleaning, cooking, laundry, ironing and other tasks in a household, residence or private dwelling, which do not generate profits for their employers. They may also perform care work, when this is agreed between the parties and is carried out in the house of the person receiving care.” The Committee understands from the inclusion of the terms “regularly and systematically” in the above definition that those workers who provide intermittent or sporadic domestic services are not considered to be domestic workers. In this respect, the Committee recalls that the definition of domestic worker set out in Article 1 of the Convention only excludes those workers who perform domestic work sporadically when it is not on an occupational basis. The Committee draws the attention of the Government to the preparatory work for the Convention, in which it is highlighted that this clarification was included in this provision to guarantee that day labourers and other precarious workers in similar situations are included in the definition of domestic worker (see Report IV(1), ILC, 100th Session, 2011, page 5). The Committee suggests that the Government might 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 Convention.

Article 3(2)(a) and (3). Freedom of association. The Government reports that article 60 of the Constitution and section 341 of the Labour Code provide for the right to organize and also apply to domestic workers. However, the Committee notes the observations of the CTRN, which reports that these provisions prohibit foreign nationals from holding office or exercising authority in trade unions. In this respect, the Committee recalls that in its 2016 comments on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it noted that a proposed constitutional reform had been submitted to the plenary of the Legislative Assembly to remove this prohibition and requested the Government to provide information on the progress of this constitutional reform. Taking into consideration the high number of migrant domestic workers in the country, the Committee refers to its comments on the application of Convention No. 87 and requests the Government to provide information on the progress made in the adoption of the proposed constitutional reform which envisages the removal of the prohibition on foreign nationals from holding office or exercising authority in trade unions. The Committee also requests 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.

Article 3(2)(b). Forced labour. The Government reports that article 56 of the Constitution provides that the State shall ensure the right to free choice of work, the Penal Code establishes prison sentences for those who participate in crimes of forced labour or similar practices, and Act No. 9095 against human trafficking, of 8 October 2012, establishes among its objectives the promotion of public policies to combat trafficking, the strengthening of sanctions to punish trafficking and related offences, and the promotion of national and international cooperation to address the issue. However, the Committee observes that, according to the 2016 report of the State Department of the United States on human trafficking in Costa Rica, women and children, mainly from Nicaragua and the Dominican Republic, have been identified as victims of trafficking for the purpose of domestic servitude in the country. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to ensure that domestic workers are not subjected to forced or compulsory labour.

Articles 3(2)(c) and 4. Child labour. The Committee notes that the Government reports the adoption by the Ministry of Labour and Social Security (MTSS) and the Office to Address and Eradicate Child Labour and Protect Young Workers (OATIA) of the “2010–20 Roadmap for the prevention and eradication of child labour and its worst forms”, which provides for the adoption of measures in relation to domestic work by minors. Observing that domestic work is one of the main sectors of child labour, the Committee requests the Government to provide information on the measures adopted or envisaged with a view to ensuring in practice the eradication of child domestic labour, including a copy of the “2010–20 Roadmap for the prevention and eradication of child labour and its worst forms”.

Article 5. Protection against abuse, harassment and violence. The Government reports that domestic workers are protected by Act No. 7476 against sexual harassment in employment and teaching, of 30 January 1995, the objective of which is to prevent, prohibit and penalize sexual harassment in work and education. However, the Committee notes that the CTRN highlights that, despite the protection provided against sexual harassment in the national legal system, it is insufficient as it does not cover the particular circumstances of domestic work and there is a lack of knowledge of domestic workers concerning their rights, especially in the case of migrant domestic workers. The Committee requests the Government to provide statistical data, disaggregated by sex, on the number and type of complaints of harassment, abuse and violence received and referred to the relevant bodies, the outcome of these complaints, the penalties imposed and the compensation granted.

Articles 6 and 9(a). Domestic workers who live in the household in which they work. Decent living conditions which respect their privacy. The Government indicates that, under section 107 of the Labour Code, the provisions of the Labour Code and other related legislation apply to domestic workers. In this regard, section 105(a), of the Labour Code provides that domestic workers, “unless agreed otherwise, shall receive adequate accommodation and food, which shall be considered to be payment in kind for the relevant legal purposes, which must be specifically set out in the employment contract …”. Section 295 provides that, in the case of workers being required to sleep at the workplace, the employer shall install specific and hygienic premises for such purposes, and section 296 provides that “if the worker is required to eat in the workplace where they provide their services, a place for eating shall be provided and maintained in a clean condition with the corresponding requirements”. However, the Committee observes that the legislation does not include provisions to regulate the right to privacy which domestic workers who live in the household for which they work must enjoy. The Committee draws the attention of the Government to Paragraph 17(a) of the Domestic Workers Recommendation, 2011 (No. 201), which indicates that, when provided, accommodation and food should include, taking into account national conditions, a separate, private room that is suitably furnished, adequately ventilated and equipped with a lock, the key to which should be provided to the domestic worker. The Committee requests the Government to provide information on the measures adopted to ensure in practice that domestic workers who live in the household for which they work enjoy decent living conditions which respect their privacy. Also, noting that the Government has not provided information on the measures adopted or envisaged to ensure that domestic workers who live in the household for which they work are not required to remain in the household or to accompany members of the household during rest periods or during holidays, the Committee requests the Government to provide information in this respect.

Article 7. Understandable information on terms and conditions of employment. Section 101, final paragraph, of the Labour Code, establishes the requirement to establish the conditions of work and the specific tasks to be carried out in a written employment contract, which must meet the requirements of section 24 of the Labour Code and the related legislation. In this respect, the Committee observes that this provision does not include clauses relating to the trial period or conditions of repatriation, in conformity with Article 7. The Committee also notes that the CTRN considers that in practice there is a lack of compliance with the requirement to enter into a written contract in the domestic work sector. The Committee also notes the Government’s information on implementation of outreach campaigns on the labour rights of all workers, including domestic workers, through the Gender Equality Unit and the adoption of training measures for public officials on the labour rights of domestic workers. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that domestic workers are informed of their terms and conditions of employment, and particularly those set out in this Article of the Convention, including the trial period and the conditions of repatriation, where applicable, in an adequate, verifiable and understandable way, especially for migrant domestic workers.

Article 8(2) and (3). Bilateral, regional and multilateral agreements. Cooperation in the application of the Convention. Observing the Government’s indication that it has not concluded any agreement providing for freedom of movement for employment for domestic work, 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). Repatriation. The Government indicates that there are no measures in the General Act on migration and foreign nationals on the repatriation of migrant domestic workers following the expiry or termination of their employment contract. However, the Committee notes the CTRN’s indication that it is standard practice to require employers to make a payment, before obtaining residence and work permits, of approximately 140 Costa Rican colones (CRC) as a deposit for use by the Government in the case of the worker being repatriated following the expiry or termination of their contract. The Committee requests the Government to provide detailed information on the conditions under which migrant domestic workers have the right to repatriation following the expiry or termination of the employment contract under which they were employed.

Article 9(c). Right to keep possession of their travel and identity documents. The Government refers to section 33(2) of the General Act on migration and foreign nationals which stipulates that “foreign nationals in the national territory are required to carry, keep and present, when requested by the relevant authorities, the documentation which confirms their migration status in Costa Rica …”. However, the Committee observes that this does not amount to protection of the right of domestic workers to keep their travel and identification documents. The Committee also notes the CTRN’s indication that there are cases of employers keeping the documents of domestic workers, particularly in some regions outside the metropolitan area. The Committee requests the Government to provide detailed information on the manner in which it ensures in practice that domestic workers have the right to keep their travel and identification documents.

Article 11. Minimum wages. The Government indicates that article 57 of the Constitution establishes the right of all workers to receive a minimum wage and section 163 of the Labour Code provides that workers cannot receive a wage below the minimum wage. Section 105(a), of the Labour Code provides that the wage of domestic workers must correspond to at least the statutory minimum wage of the category established by the National Wage Council. In this regard, the Committee notes that section 2 of Decree No. 40022-MTSS on minimum wage fixing for the private sector, which came into effect on 1 January 2017, establishes that an employer shall not pay a wage lower than that established for unskilled workers, which corresponds to the minimum protection wage (salario mínimo minimorum). However the Committee observes that a minimum wage below this amount is established for domestic service through a specific wage set in clause 1 of section 1(c) of the above Decree. The Committee also notes that, according to the study by the ILO on the proposed reform for the application of minimum wages to domestic work in Costa Rica, the minimum wage received by domestic workers is in no case sufficient to exceed the poverty or material deprivation thresholds. In this respect, the Committee observes that, according to the Continuous Employment Survey (ECE) of the National Institute of Statistics and Census (INEC), in the second quarter of 2016, 41.30 per cent of domestic workers earned less than the minimum wage for unskilled workers; 46.61 per cent earned between the minimum wage and less than twice the minimum wage; 11.78 per cent from two to five times the minimum wage; and 0.30 per cent five or more times the minimum wage. The Committee also observes that the above study recommends the Government to promote a progressive increase in the minimum wage for domestic workers to close the gap with the minimum protection wage. For the increase to be effective, the Government is also recommended to adopt supplementary measures, such as information campaigns on the amount of the current minimum wage, variations relating to payments in kind and the current statutory working day, along with the establishment of complaint mechanisms for non-compliance. The Committee also notes the Government’s indication that on 15 June 2016 the National Wage Council adopted an increase of 0.5 per cent in the minimum wage for all wage categories, except domestic workers, for whom it established a separate increase of 2 per cent with the objective of reducing the wage gap between this occupation and the minimum wage established for the private sector. Observing that domestic workers receive the lowest minimum wage of private sector workers, the Committee requests the Government to provide information on the effect given to the recommendations of the Office for a gradual increase in the minimum wage for domestic workers and to indicate how it compares to the minimum wage in other sectors.

Article 12(2). Payments in kind. The Committee notes that section 166 of the Labour Code defines payment in kind 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 “for all legal purposes, 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 wage in cash received by the worker”. However, it provides 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. On the other hand, section 105(a) provides that domestic workers, “… unless agreed otherwise, shall receive adequate accommodation and food, which shall be considered to be payment in kind for the relevant legal purposes, which must be specifically set out in the employment contract …”. “In no circumstances shall payments in kind form part of the statutory minimum wage …”. The Committee requests the Government to provide information on the application in practice of this Article of the Convention, and particularly to indicate which supplies provided by the employer to the worker are considered to be of an undoubtedly free nature, in accordance with section 166 of the Labour Code.

Article 13(1) and (2). Effective measures which guarantee occupational safety and health. The Government indicates that section 104 of the Labour Code establishes the requirement for the employer to insure domestic workers against occupational risks. In this regard, the Government reports the adoption of the Domestic Work Occupational Risk Insurance Scheme with a view to simplifying the procedure for employers or policyholders which is available on the web page of the above institution. The Government indicates that migrant domestic workers can also be insured by this scheme, which excludes those who carry out work related to the cleaning of buildings, offices, hotels and other establishments. The Committee also notes the CTRN’s indication that the Occupational Health Council (CSO), a technical body for matters of occupational health attached to the MTSS under section 174 of the Labour Code, has not included domestic workers in its agenda and emphasizes that there are no effective methods to control compliance with the national legislation in relation to the occupational safety and health of domestic workers. The Committee requests the Government to provide information on any measures adopted or envisaged to ensure the occupational safety and health of domestic workers, taking due note of the specific characteristics of domestic work. The Committee also requests the Government to provide statistical information, disaggregated by sex, on the number of domestic workers who are insured under the Domestic Work Occupational Risk Insurance Scheme.

Article 14. Access to social security. The Government indicates that, in accordance with article 73 of the Constitution, social security is established for the benefit of all workers to protect them against the risks of illness, invalidity, maternity, old age and death and other contingencies covered by the law. These rights are also applicable to domestic workers, and they are inalienable under article 74 of the Constitution. Section 3 of Act No. 17 of 22 October 1943, the Act establishing the Costa Rican Social Insurance Fund (CCSS), provides that social security coverage is a requirement for all workers who receive a wage or salary. The Government also refers to the specific provisions for domestic workers, such as section 104 of the Labour Code which requires the employer to ensure social security for domestic workers and to register them with the CCSS. Regarding domestic workers who work on an hourly basis, the Government indicates that the majority of these workers are not covered by social security as they opt for voluntary insurance and many of them work for several employers, which makes their coverage difficult. In this context, the Government reports that on 21 July 2016 the governing board of the CCSS adopted measures to approve the “comprehensive proposal for the extension of contributory coverage to paid domestic workers”, which would allow benefits to be extended to this population category. The proposal includes the design of a new mechanism to adjust the economic cost of insurance and establish new mechanisms to facilitate coverage such as online registration, direct contacts with domestic workers and measures to ensure that there is an employment contract behind each insurance policy. However, the Committee observes that the Government does not report whether the regulations have been adopted to give effect to the proposal. The Committee notes the Government’s indication that the proposal was presented for financial assessment in collaboration with the MTSS, the Ministry of Finance and the National Institute for Women (INAMU) together with the Domestic Workers’ Association (ASTRADOMES) and ILO representatives. Nevertheless, the CTRN considers in its observations that the Higher Labour Council, a tripartite body responsible for the negotiation of labour issues and working conditions, was not convened to discuss the proposal. Lastly, the Committee notes that, on 28 November 2013, the governing board of the CCSS approved a gradual increase in the minimum wage of domestic workers with the objective of bringing it up to the level of the minimum wage for unskilled workers by October 2019. The Committee requests the Government to provide a copy of the regulations envisaged in the “comprehensive proposal for the extension of contributory coverage to paid domestic workers” following its adoption and to provide detailed information on its application in practice. The Committee also requests the Government to indicate whether the above regulations were adopted in consultation with the most representative organizations of employers and workers, and organizations representative of domestic workers and of the employers of domestic workers, where they exist.

Article 15(1) and (2). Private employment agencies. The Government indicates that there are no private agencies in the country working in the domestic work sector. However, the Committee notes that the CTRN references the existence of at least five private employment agencies which, although they are not registered, are operating in the country. The Committee refers to its 2016 comments regarding the application by Costa Rica of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and requests the Government to provide information on the progress made with the legislative process and on the content of the draft bill to regulate the operation of private employment agencies. The Committee also requests the Government to indicate whether the above regulations were adopted in consultation with the most representative organizations of employers and workers, and organizations representative of domestic workers and of the employers of domestic workers, where they exist.

Article 17(1). Complaint mechanisms. The Government refers in general terms to the possibility for domestic workers to have access to legal and administrative complaint mechanisms. In particular, the Government cites article 70 of the Constitution, which establishes the labour court and section 88 of the Organic Act on the Ministry of Labour and Social Security, which establishes the jurisdiction of the General Labour Inspectorate over compliance with national labour legislation. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to ensure that effect is given in practice to this Article of the Convention, including legal advisory services and information on the procedures and mechanisms which are accessible in a format or language understandable for migrant domestic workers, including awareness campaigns on the labour rights of this category of workers.

Article 17(2) and (3). Labour inspection and sanctions. Access to household premises. The Government indicates that the National Inspection Office (DNI) pays due attention to the particular characteristics of domestic work. The Government reports that 38.74 per cent of offences detected in the case of domestic work are due to the illegal dismissal of pregnant workers, 12.61 per cent to the failure to register workers with the Domestic Work Occupational Risk Insurance Scheme, 11.71 per cent to the failure to register workers with the CCSS, 10.81 per cent the failure to comply with rights of pregnant workers and 6.31 per cent to non-compliance with the minimum wage. Regarding access to household premises by the labour inspection services, the Government reports that section 89 of the Organic Act on the Ministry of Labour and Social Security provides that “Labour inspectors shall have the right to visit workplaces, whatever their nature …”. However, the Committee notes that the DNI, as indicated in the report of the Government, indicates that the inviolability of the home, established in article 23 of the Constitution, poses problems in relation to inspections in households in which domestic workers are working. In this context, the Committee notes that the Government requests technical assistance from the Office in order to familiarize itself with good practices in other national legislation respecting labour inspections in private homes and to assess their applicability in the country. The Committee requests the Government to provide information on the measures adopted or envisaged regarding labour inspection and information on the application of standards and the penalties which pay due attention to the particular characteristics of domestic work. Moreover, taking note of the Government’s request for technical assistance regarding labour inspection in private residences, the Committee hopes that the Office will provide the requested technical assistance.

Application of the Convention in practice. The Committee requests the Government to provide 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 offences recorded and, if possible, a copy of an employment contract for domestic work.