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Domestic Workers Convention, 2011 (No. 189) - Bolivia (Plurinational State of) (RATIFICATION: 2013)

Other comments on C189

Direct Request

2019
2017

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The Committee notes the observations of the National Federation of Waged Domestic Workers of Bolivia (FENATRAHOB), received on 18 September 2018. The Committee requests the Government to provide its comments in this regard.

Article 2 of the Convention. Scope of application. Exclusions. In reply to the Committee’s previous comments, the Government indicates that section 1(3) of Act No. 2450 of 9 April 2003 regulating waged domestic work (Act No. 2450 of 2003) provides that “work performed in service or commercial premises, even if it is carried out in private houses, shall not be considered waged domestic work”, with the aim of avoiding commercial activities being disguised as waged domestic work. By way of example, the Government indicates that the intention is to avoid workers being employed under the waged domestic work regime, for example when they carry out kitchen work in establishments selling food where the employer also resides. The Government adds that no categories or groups of waged domestic workers have been excluded from the application of Act No. 2450 of 2003. The Government indicates that waged domestic workers who perform work occasionally or sporadically on an occupational basis are not covered by Act No. 2450 of 2003 and are governed by the general system established in the General Labour Act. In this respect, the Government reports that Act No. 2450 of 2003 was developed with the participation of the representatives of waged domestic workers, who are aware of the informality that is characteristic of occasional or sporadic domestic work. The Committee requests the Government to provide a detailed explanation of the reasons why waged workers who perform domestic work occasionally or sporadically on an occupational basis are excluded from the scope of application of Act No. 2450 of 2003. The Committee also requests the Government to provide information on the consultations that were held prior to this exclusion with the most representative employers’ and workers’ organizations, as well as with the representative organizations of domestic workers and the representative organizations of employers of domestic workers, where such organizations exist. The Committee also requests the Government to send detailed information on the manner in which it is ensured that the excluded workers receive protection at least equivalent to that received by waged domestic workers covered by Act No. 2450 of 2003.

Article 3(2)(a). Freedom of association and collective bargaining. The Committee notes the observations of FENATRAHOB affirming that, on 6 July 2018, its members participated in a demonstration protesting the delay in the entry into force of the Supreme Decree on the registration with the National Health Fund of waged domestic workers. FENATRAHOB reports that, during the demonstration, the police used tear gas to repress its members, without considering that there were children present. FENATRAHOB also reports that the right to collective bargaining of waged domestic workers has been limited, as they do not have access to collective bargaining forums and do not participate in decision-making processes regarding their rights. FENATRAHOB further affirms that the Government did not send it a copy of the report on the application of the Convention. In this regard, the Committee recalls that, under article 23 of the ILO Constitution, Governments shall communicate to the most representative workers’ and employers’ organizations copies of the reports on the application of ratified Conventions. The Committee requests the Government to reply to the observations of FENATRAHOB in relation to the allegations regarding police action against its members during the protest that took place on 6 July 2018 and the measures taken by the Government in that respect, if any. The Committee also requests the Government to adopt the necessary measures to guarantee that the representative workers’ and employers’ organizations receive a copy of the report on the application of the Convention with sufficient time to formulate their observations in that regard.

Article 3(2)(b). Elimination of all forms of forced or compulsory labour. In reply to the Committee’s previous comments, the Government refers, inter alia, to section 18 of Comprehensive Act No. 263 of 31 July 2012 on human trafficking and smuggling, which establishes that, to receive the prior authorization required to operate, private employment agencies must have, inter alia, internal rules of procedure that incorporate the principles of prevention and protection against trafficking and smuggling of persons and related offences. In the absence of information provided by the Government in this respect, the Committee reiterates its request to the Government to provide information on the effect given in practice in relation to domestic workers to the Comprehensive Act to combat the trafficking and smuggling of persons, including statistical information on the number and nature of the violations reported, investigations, prosecutions and convictions in that regard.

Articles 3(2)(c) and 4. Child labour. Minimum age. In its previous comments, the Committee requested the Government to take the necessary measures to ensure the amendment of section 129 of the Code of Children and Young Persons to bring the minimum age for admission to employment or work into conformity with the age specified in the Minimum Age Convention, 1973 (No. 138), that is 14 years, as a minimum. The Committee also requested the Government to provide specific information on the measures adopted or envisaged for the abolition of child domestic labour. The Committee notes with interest that Constitutional Court Decision No. 0025/2017 of 21 July 2017 declared unconstitutional and abrogated, among other provisions, section 129(II) of the Code of Children and Young Persons. Section 129(II) provided for the possibility of authorizing own-account work by girls, boys or young persons between the ages of 10 and 14 years, and work for third parties by young persons between 12 and 14 years of age. Consequently, following the above-mentioned Decision, section 129 of the Code of Children and Young Persons fixes the minimum age of work at 14 years, in accordance with the provisions of Convention No. 138. Nevertheless, the Committee observes that the Government has not included information in its report on the measures adopted or envisaged with a view to abolishing child domestic labour in practice. Consequently, the Committee reiterates its request to the Government to provide detailed and updated information on the measures adopted or envisaged with a view to eliminating child domestic labour in practice.

Article 5. Effective protection against abuse, harassment and violence. In reply to the Committee’s previous comments, the Government reiterates that waged domestic workers benefit from the same protection against abuse, harassment and violence as that afforded to all workers under the Constitution and Act No. 348 of 9 March 2013 on guaranteeing to women a life free from violence. The Government also reiterates that waged domestic workers may lodge complaints or requests relating to abuse, physical assault or sexual or other types of harassment with the Brigade for the Protection of Women and Families, the police, the Office of the Public Prosecutor and other competent authorities. The Government indicates that no complaints of sexual harassment suffered by waged domestic workers have been lodged with the labour offices. In this respect, the Committee stresses, as it has done previously in relation to the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), that an absence of complaints is not necessarily an indication that no sexual harassment is taking place. Regarding complaints brought before the courts, the Government provides general information on the complaints lodged for cases of violence against women. However, the Government indicates that it does not have information regarding which of these complaints referred to cases involving victims who were waged domestic workers, as the courts make no distinction as to the type of work or condition of the victim or complainant. In this regard, the Committee emphasizes that gathering statistical information on the number of complaints received of cases of abuse, harassment and violence against waged domestic workers does not constitute discrimination against such workers, but would allow the competent authorities to gain an understanding of the magnitude of the problem with a view to adopting the measures they consider appropriate and evaluating their impact. The Committee reiterates its request to the Government to provide detailed and updated information on the application in practice of the provisions of Act No. 348 of 2013 and Act No. 2450 of 2003 in relation to the protection of domestic workers against any form of abuse, harassment or violence. The Committee also once again requests the Government to provide statistical data on the number of complaints received of harassment, abuse and violence by the various competent bodies, the outcome of these complaints, the penalties imposed on those responsible and the compensation granted.

Articles 6 and 9. Domestic workers who reside in the household in which they work. In reply to the Committee’s previous comments, the Government indicates that it is customary when waged domestic services are contracted for the contracting parties to freely agree whether the waged domestic worker will reside in the house for which he or she works (cama adentro) or not (cama afuera). The Government also indicates that the custom is generally that waged domestic workers are not required to remain in the household or accompany members of the household during periods of rest or annual leave. The Government adds that, if this is not the case, the waged domestic worker receives extra payment for the period of time worked. The Government also indicates that, under section 16(c) of Act No. 2450 of 2003, employers are prohibited from holding workers’ personal effects, including identity and travel documents. In the event of violations of this provision, the Ministry of Labour, Employment and Social Welfare (MTEPS), through the labour inspectorate, is competent to summon the employer to appear before it and return the withheld documentation to the worker. The Committee requests the Government to indicate the provisions of the legal system under which it is guaranteed that waged domestic workers are free to reach agreement with their employer or potential employer on whether to reside in the household for which they work in accordance with Article 9(a) of the Convention, and, if they do reside in the household for which they work, they are not obliged to remain in the household or with household members during periods of daily and weekly rest or annual leave in accordance with Article 9(b) of the Convention. Furthermore, the Committee requests the Government to provide information on the application in practice of section 16(c) of Act No. 2450 of 2003, particularly on the number of complaints received regarding the withholding of identity and travel documents of waged domestic workers by their employer, the outcome of these complaints and the compensation awarded.

Article 7. Written contract of employment. In reply to the Committee’s previous comments, the Government reports that the MTEPS organizes information and awareness-raising campaigns, as well as workshops on the labour rights of waged domestic workers in different cities in the country. The Government indicates that, between the approval of Act No. 2450 of 2003 and March 2015, only four written employment contracts were concluded in the sector. FENATRAHOB also reports low numbers of employment contracts approved by the MTEPS. In this context, the departmental representatives of the Ombudsman from La Paz and the union of waged domestic workers of San Pedro ran a campaign between November 2014 and June 2015 to promote the conclusion of written contracts in the sector. The Government reports that this campaign provided information to 810 households. With regard to trial periods, the Government reports that waged domestic workers are governed by section 13 of the General Labour Act, which provides that, “… the trial period is deemed to include only the first three months …”. With regard to terms of repatriation, the Government refers to sections 4 to 19 of the Foreign Affairs Service Act of the Plurinational State of Bolivia, Act No. 465 of 19 December 2013 (Act No. 465 of 19 December 2013), which establishes the authorities competent to execute plans, programmes or projects for the repatriation or return of Bolivian nationals and their families upon their request. However, the Government does not indicate how it is ensured in practice that domestic workers are informed of the terms of the trial period and repatriation, where applicable. Lastly, the Committee observes that the Government has not provided information in its report on the measures adopted or envisaged with a view to ensuring that waged domestic workers from underprivileged communities, including indigenous and tribal communities, are informed of the terms and conditions of employment in an appropriate, verifiable and easily understandable manner. The Committee requests the Government to continue sending detailed and updated information on the measures adopted or envisaged to ensure that waged domestic workers are informed of the terms and conditions of employment – including the trial period and terms of repatriation, where applicable – in an appropriate, verifiable and easily understandable manner. In this regard, the Committee requests the Government to provide updated information on the measures adopted or envisaged with a view to promoting the conclusion of written contracts of employment in the waged domestic work sector, as well as statistical information on the number of written contracts concluded. The Committee reiterates its request to the Government to provide detailed and updated information on the measures adopted or envisaged with a view to ensuring that waged domestic workers from underprivileged communities, including indigenous and tribal communities, are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner. The Committee also reiterates its request to the Government to indicate the means through which this information is provided, including printed or audiovisual material, and the languages in which it is available.

Article 8(1) and (4). Migrant domestic workers. In reply to the Committee’s previous comments, the Government reports that, in 2006, the issue of international migration was included on the political agenda, making it a central and priority concern. In this context, a “national agreement for Bolivians abroad” was concluded between various stakeholders, including representatives of national institutions, international organizations and civil society. However, the Government reports that there are no provisions in the legal system establishing an obligation to provide waged domestic workers with a written job offer or contract of employment enforceable in the country in which the work is to be performed prior to crossing the national borders for the purposes of taking up the domestic work to which the offer or contract applies. Regarding the right to repatriation of migrant domestic workers on the expiry or termination of the contract, the Government refers to sections 4 and 19 of Act No. 465 of 2013, which establish the authorities competent to execute plans, programmes or projects for the repatriation or return of Bolivian nationals and their families when such requests are made collectively. However, the Government has not provided information on the conditions under which waged domestic workers are repatriated on the expiry or termination of their contract. The Committee requests the Government to adopt the necessary measures to ensure that migrant waged domestic workers who are recruited in one country for domestic work in another receive a written job offer or contract of employment that is enforceable in the country in which the work is to be performed, addressing the terms and conditions of employment referred to in Article 7 of the Convention, prior to crossing national borders for the purpose of taking up the domestic work to which the offer or contract applies. The Committee also requests the Government to specify 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 also requests the Government to provide information on the measures adopted under the “national agreement for Bolivians abroad” in relation to waged domestic workers.

Article 10(1) and (3). Equality of treatment in relation to hours of work. Periods during which domestic workers are not free to dispose of their time. In its previous comments, the Committee suggested that the Government might consider the possibility of establishing a working day of a maximum of eight hours for all domestic workers, including those domestic workers who reside in the household for which they work. The Committee notes the Government’s indication that there is no mechanism for recording hours of work in the waged domestic work sector for the ordinary working day or overtime. The Government adds that the implementation in practice of such a recording mechanism would not receive the support of waged domestic workers, as it could lead to deductions from wages for tardiness or absences. In relation to periods during which waged domestic workers are not free to dispose of their time as they please and remain at the disposal of the household in order to respond to possible calls, the Government indicates that these are considered to be hours of work under section 47 of the General Labour Act. This section provides that the effective working hours include the time during which the worker is at the disposal of the employer. Nevertheless, the Committee observes that the Government has not provided information on the measures adopted or envisaged with a view to establishing a working day of a maximum of eight hours, like all other workers, for all waged domestic workers, including those who reside in the household for which they work. In this respect, the Committee recalls that Article 10 of the Convention establishes that measures shall be taken “towards ensuring equal treatment between domestic workers and workers generally in relation to normal hours of work”. The Committee therefore requests the Government to adopt the necessary measures to establish, like all other workers, a working day of a maximum of eight hours for waged domestic workers, including those waged domestic workers who reside in the household for which they work. The Committee also requests the Government to indicate how the application of section 47 of the General Labour Act is ensured in practice in the waged domestic work sector.

Article 11. Minimum wage. In response to the Committee’s previous comments, the Government indicates that, while the MTEPS has a monitoring system for labour complaints, it is not possible to provide information on which of the cases detected of violation of the obligation to pay at least the minimum wage correspond to the waged domestic work sector. Nevertheless, the Government provides a copy of the wage and occupational safety and health book (LSySST), through which the obligation is fulfilled to record the payment of wages to waged domestic workers, in accordance with the provisions of section 1(II) of Resolution No. 218 of 28 March 2014. The Committee requests the Government to take the necessary measures to compile information on the cases where violations of the obligation to pay at least the minimum wage to waged domestic workers are detected. The Committee also requests the Government to provide information on the number of wage and occupational safety and health books registered.

Article 13. Occupational safety and health. In reply to the Committee’s previous comment, the Government reports that the MTEPS facilitates first aid training during fairs, campaigns and workshops held on the rights of waged domestic workers. The Government indicates that this training has been brought to the attention of the employers’ organization of waged domestic workers, the Housewives’ League. Furthermore, the wage and occupational safety and health book, the registration of which is compulsory, includes a section for recording the training received by the waged domestic worker at the expense of the employer in the area of occupational safety and health. On this matter, FENATRAHOB indicates that there are no specific regulations to mitigate the ever-present risks in the sector (such as handling electrical appliances, cooking food at high temperatures and performing tasks in unsanitary locations), and the general legislation on safety and health is applied, which is intended for industrial and mining activities, as well as all industrial activities involving polluting gases and unsanitary environments. FENATRAHOB also indicates that consultations have not been held with the social partners in relation to the application in practice of this Article of the Convention. The Committee requests the Government to continue providing detailed and updated information on the measures adopted or envisaged that duly take into account the specific characteristics of waged domestic work, in order to ensure the occupational safety and health of such workers. The Committee also requests the Government to provide information on the consultations held with the social partners in this respect.

Article 14(1). Social security. In its previous comments, the Committee noted that section 24 of Act No. 2450 of 2003 provides that the registration with the National Health Fund (within the framework of the short-term social security scheme) of waged domestic workers is subject to further regulation by supreme decree. In this regard, the Committee requested the Government to take the necessary measures for the approval of those regulations. The Government reports the establishment of working groups, the members of which include FENATRAHOB, with the aim of drafting the above-mentioned regulations, which are currently being formulated. In this regard, FENATRAHOB reports that no measures have been adopted to ensure access to social security, including maternity, for waged domestic workers. It also reports that, in 2017, several meetings were held, with the technical assistance of the ILO, involving various institutions, such as the National Health Fund and the MTEPS, with a view to formulating draft regulations. FENATRAHOB indicates that, in this context, the Financial Unit of the Ministry of Health issued a report, without providing a technical basis, stating that the inclusion of waged domestic workers in the social security system would lead to its financial collapse. FENATRAHOB indicates that, thanks to coordination between different labour sectors and social entities, substantial progress was made in the final formulation of the draft supreme decree. In June 2018, FENATRAHOB was informed that the draft was before the Cabinet of Ministers for consideration. However, FENATRAHOB stresses that it has still not received information on the current status of the adoption process of the draft. With regard to long-term social security (pensions), the Government indicates that, under the provisions of Act No. 065 of 10 December 2010, any worker or natural person can make voluntary contributions with the objective of receiving a pension for old age, invalidity or death. However, FENATRAHOB reports that waged domestic workers still do not have access to the long-term social security system. The Committee reiterates its request to the Government to take the necessary measures for the approval of the regulations needed to guarantee the access of domestic workers to the National Health Fund, and to provide a copy of the regulations once they have been adopted. The Committee requests the Government to provide information on how the access of waged domestic workers to long-term social security (pensions) is ensured in practice, including statistical information on the number of waged domestic workers registered with this scheme.

Article 15. Private employment agencies. The Committee recalls that, in its previous comments, it noted that section 25(I) of Act No. 263 of 2012 provides that the MTEPS shall, by means of specific regulations, determine operational requirements, rights, duties, inspections, prohibitions and penalties for the purposes of preventing the trafficking and smuggling of persons and related crimes. In this regard, the Committee requested the Government to indicate whether these regulations had been adopted, and whether the social partners had been consulted on that matter. The Government reports that the regulations are still being formulated. The Committee requests the Government to adopt the necessary measures, in collaboration with the social partners, with a view to adopting the regulations on the operation and requirements of employment agencies and to provide a copy of the regulations once they have been adopted.

Articles 16 and 17(1). Effective access to courts, tribunals or other dispute resolution mechanisms. Complaint mechanisms. In reply to the Committee’s previous comments, the Government indicates that it does not have information on the complaints lodged by waged domestic workers with various competent bodies. The Government indicates once again that, on the basis of the principle of equality, the monitoring system for labour complaints does not identify the sector in which the victim works. The Committee indicates that gathering information on the complaints lodged by waged domestic workers with the competent bodies does not constitute a discriminatory act against those workers. With respect to complaints mechanisms, the Government reports that the labour inspection services have received training to handle complaints from all workers, including waged domestic workers. The Government indicates that there is a free-of-charge telephone line that is publicized through various media channels and a section for addressing complaints and advice on the institution’s website. In addition, as part of the MTEPS regional fairs and campaigns for waged domestic workers, labour inspectors provide advice on labour rights to such workers and handle complaints and allegations. Recognizing the importance of reliable and sufficiently disaggregated data as a firm foundation for evaluating compliance with obligations under the Convention, the Committee emphasizes once again that the collection of data specific to waged domestic work does not amount to discrimination. The Committee reiterates its request to the Government to provide information on the number of complaints lodged by waged domestic workers with the various competent bodies, the penalties imposed on those responsible and the compensation granted. The Committee requests the Government to continue sending detailed and updated information on the measures taken or envisaged to ensure in practice compliance with these Articles of the Convention. The Committee also requests the Government to provide information on the number of reports and complaints lodged with labour inspectors by waged domestic workers and their outcomes.

Article 17(2) and (3). Labour inspection and penalties. Access to household premises. In reply to the Committee’s previous comments, the Government indicates that, under Article 25(I) of the Political Constitution of the State, every person has the right to the inviolability of his or her home, except in the event of judicial permission. The Government reports that the MTEPS is not competent to conduct inspections in private homes or residences. Inspections of private residences are only possible with the prior authorization of the owner or with an order issued by a judge. In this respect, the Committee recalls that Article 17(2) of the Convention establishes that measures shall be developed and implemented for labour inspection, enforcement and penalties with due regard “for the special characteristics of domestic work, in accordance with national laws and regulations”. The Committee therefore reiterates its request to the Government to provide detailed and updated information on the measures adopted or envisaged in relation to labour inspection, with due regard for the special characteristics of domestic work, in accordance with the national legislation.