Solicitud directa (CEACR) - Adopción: 2015, Publicación: 105ª reunión CIT (2016)

Convenio sobre las trabajadoras y los trabajadores domésticos, 2011 (núm. 189) - Ecuador (Ratificación : 2013)

Otros comentarios sobre C189

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The Committee notes the Government’s first report. The Committee also notes the observations of the Association of Paid Homeworkers (ATRH), which are included in the report.

Article 1, paragraph 1(a), (b) and (c) of the Convention. Definition of domestic work and domestic worker. The Committee notes 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 is lodged in or outside the employer’s home”. The Government also states that section 17 of the Labour Code envisages continuous or discontinuous casual contracts, occasional contracts and seasonal contracts and indicates that these arrangements are for a fixed period of time, unlike the system of contracts of indefinite duration established for domestic workers in section 265 of the Labour Code. The Committee recalls that, irrespective of the type of contract held by workers providing domestic services, the definition of domestic worker laid down in Article 1 of the Convention only excludes persons who perform domestic work occasionally or sporadically and not on an occupational basis. The Committee requests the Government to 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.

Article 3(3). Protection of the right to establish and join organizations. The Committee notes the ATRH’s indication in its observations that the imposition of certain requirements for the establishment of trade unions (including the number of workers required (30) to form associations) restricts the right to organize and the union points out that the legislation needs to be amended so that domestic workers can establish trade unions in full freedom. The Committee refers to the comments it made on this subject in the context of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which it considered that the abovementioned number was excessive and asked the Government to amend the relevant legislation. The Committee also recalls in general that in drafting this Convention, special emphasis was placed on the need to reaffirm the rights of freedom of association and collective bargaining with explicit reference to domestic workers (see Report IV(2), ILC, 99th Session, 2010, page 387).

Articles 6, 7 and 9(b). Workers who reside in the household. Decent living conditions that respect their privacy. Details of the employment contract. Freedom of movement during periods of daily and weekly rest or annual leave. The Committee notes that section 268 of the Labour Code stipulates that it is the employer’s obligation to provide the domestic worker with food and lodging. The Committee recalls that, under Article 6 of the Convention, each Member must take measures to ensure that domestic workers, like workers generally, enjoy fair terms of employment as well as decent working conditions and, if they reside in the household, decent living conditions that respect their privacy. The Committee also observes that section 21 of the Labour Code, which sets out the items that must be covered by the written contract, does not include certain elements from Article 7, such as normal hours of work, paid annual leave, daily and weekly rest periods, the provision of food and accommodation, the period of probation or trial period, the terms of repatriation, and terms and conditions relating to the termination of employment, including any period of notice by either the domestic worker or the employer. Lastly, the Committee observes that the legislation does not contain any provisions stating that domestic workers 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 of the Convention. In this respect, the Committee notes the Government’s indication that it is drawing up a draft Ministerial Decision which will contain a chapter on the employment contracts of domestic workers describing in detail the employer’s obligations concerning matters such as food, lodging, hours of work and education for domestic workers. The Committee trusts that the aforementioned draft Ministerial Decision will take due account of the provisions of the Convention. The Committee recalls that the Domestic Workers Recommendation, 2011 (No. 201), assumes particular importance in this process as a reference document. The Committee requests the Government to provide information on any developments in this respect.

Article 9(c). Right to keep travel and identity documents. The Committee observes that the Government does not indicate which provisions ensure that migrant workers can keep their travel and identity documents in their possession. The Committee requests the Government to supply information on the measures taken or contemplated to give effect to this provision of the Convention.

Article 13(1) and (2). Effective measures to ensure the safety and health of domestic workers. The Committee notes that there are no specific occupational safety and health provisions that are applicable to domestic workers. The Government indicates that section 410 of the Labour Code provides that employers are obliged to ensure working conditions for their workers which do not entail any danger to their safety or health and that section 1 of the Regulations concerning occupational safety and health and improvements to the working environment provides that the Regulations apply to all forms of work and all workplaces. The Committee recalls that, under Article 13 of the Convention, each Member shall take appropriate measures, with due regard for the specific characteristics of domestic work, to ensure that domestic workers enjoy safety and health at work. Such measures may be applied progressively, in consultation with the most representative organizations of employers and workers, and with organizations representative of domestic workers and those representative of employers of domestic workers. The Committee requests the Government to supply information on any measures taken or contemplated to ensure the occupational safety and health of this category of workers, taking due account of the specific characteristics of domestic work. The Committee also notes that the ATRH emphasizes in its observations the need for better preventive dissemination of these rights of domestic workers and highlights the need for specific occupational diseases of these workers to be examined and for them to be incorporated into the official list of occupational diseases. The Committee requests the Government to send its comments on this matter.

Article 15(1)(b). Machinery and procedures for the investigation of fraudulent practices on the part of private employment agencies. The Committee notes the ATRH’s indication that private employment agencies have not been favourable towards female domestic workers and that, for example, female domestic workers who have been registered for years in the hope of finding employment are never called by the agencies. The Committee also notes the Government’s statement that at the third meeting of the Policy Forum on the Rights of Paid Domestic Workers, which was attended by representatives of the Government and of the ATRH, it was decided to review the regulations concerning the functioning of private employment agencies with a view to increased monitoring of them. The Committee requests the Government to provide information on any developments in this respect.

Article 17(1). Complaint mechanisms. The ATRH refers in its observations to the need to guarantee rapid and comprehensible complaint mechanisms, to propose competent legal advice in places where complaints are received and to provide training for officials receiving complaints and also for inspectors with regard to the specific features of the sector in order to enforce the labour legislation for this category of workers. The Committee requests the Government to send its comments on this matter.

Article 17(2) and (3). Labour inspection and penalties. Access to household premises. The Committee notes the Government’s statement that the Ministry of Labour has undertaken various campaigns to raise awareness and ensure dissemination of the labour rights of workers, such as the “decent domestic work” campaign in 2010 and the “decent work” campaign in 2011. In addition, in June 2011, the Ministry conducted 14,000 home inspections in middle- and upper-class urban areas, including direct interviews with domestic employees concerning their employers’ compliance with labour obligations. In cases where the labour regulations were respected, inspectors affixed a “decent work” label at the entrance to the residence concerned and in cases where non-compliance was observed, the corresponding financial penalties were imposed, together with the requirement to regularize the workers’ situation. The Government also indicates that the employer’s consent is required to enable a home inspection to be carried out. The Committee also notes that although the ATRH recognizes the progress made, it underlines the need for mechanisms to be established to enable monitoring of holiday payments and the payment of minimum wages (particularly in rural areas of the provinces), for registration and notification procedures regarding occupational accidents and diseases in paid domestic work to be strengthened, and for compensation in cases involving occupational accidents and diseases to be enforced. While noting the progress made regarding labour inspection in domestic work, the Committee requests the Government to supply information on the impact of these campaigns and the planned follow-up. The Committee also requests the Government to send its comments on the observations of the ATRH on this point.