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

Convenio sobre las trabajadoras y los trabajadores domésticos, 2011 (núm. 189) - Filipinas (Ratificación : 2012)

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Solicitud directa

2020
2015

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Articles 2 and 18 of the Convention. Scope of application. Consultations. The Committee takes good note of the detailed information contained in the Government’s first report on the application of the Convention. It notes with interest that the main legislation implementing the Convention is Republic Act No. 10361, An act instituting policies for the protection and welfare of domestic workers, of 18 January 2013 (hereinafter, RA10361) and its implementing rules and regulations (hereinafter, IRR). The Committee also notes the comprehensive measures taken by the Government to implement the Convention. The Government indicates that the following categories of workers are not covered from the application of legislation: service providers; family drivers; children under foster family arrangement; and any person who performs work occasionally or sporadically and not on an occupational basis (section I(4)(d) of RA10361 and Rule I(3)(e) of the IRR). Service providers and children under foster family arrangements are defined under Rule I(3) of the IRR. As regards family drivers, the Government indicates that they are excluded from the scope of the application of the Convention because the job requires different competency requirements, and they are currently receiving remuneration higher than domestic workers. Nevertheless, they are covered under the Labor Code, including with regard to social security contributions. The Government indicates that the exclusions of family drivers and children under foster family arrangements were thoroughly discussed during the Bicameral Conference Committee. The Committee notes that the Government provides no information on consultations with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers and those representative of domestic workers with regard to the exclusions of categories of workers from the scope of application of the Convention (Article 2(2) of the Convention). The Committee requests the Government to provide information in this regard. It further requests the Government to provide information on the consultations held with the concerned social partners in the implementation of the Convention, including with regard to measures taken to protect domestic workers recruited or placed by private employment agencies, against abusive practices (Articles 15(2) and 18 of the Convention).

Article 3(2)(a). Freedom of association. The Committee notes that the right of domestic workers to form, join, or assist associations or organizations of their own choosing for their mutual benefit and protection and for the purposes of collective negotiation and social dialogue is expressly recognized under the IRR (Rule I(1), and Rule IV(1)(j) and (17)). Under Rule IV(17) of the IRR, the Regional Tripartite Industrial Peace Council (RTIPC), chaired by the Regional Director of the Department of Labor and Employment (DOLE), shall create within the council a subcommittee to ensure adequate representation of domestic workers in social dialogue on issues and concerns specific to their work and their welfare. The Government also refers to general legislation applicable to all workers on freedom of association, that is, Republic Act No. 9481, An act strengthening the workers’ constitutional right to self-organization, amending the Labor Code. With regard to migrant domestic workers, the Government refers to section 2(f) of the Migrant Workers and Overseas Filipinos Act of 1995 (No. 8042), as amended, recognizing the right of Filipino migrant workers and all overseas Filipinos to participate in the democratic decision-making processes of the State and to be represented in institutions relevant to overseas employment. In its comments on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee has noted the Government’s indication that House Bill No. 5927 seeking to remove the 20 per cent minimum membership requirement for registration of independent labour organizations failed to pass in Congress, that the removal of the 20 per cent requirement was reconsidered and lowered to 10 per cent in order to prevent the proliferation of short-term unions and intra-union disputes, and that the new amendment is supported by the National Tripartite Industrial Peace Council (NTPIC). In the same comments, the Committee has also noted the Government’s information that House Bill No. 894, which aimed to extend the right to self-organization to aliens in the Philippines, failed to pass in Congress, has been refiled as House Bill No. 2543 and is now again pending before Congress. The Committee has also observed that, in June 2015, House Bill No. 2543 was substituted by House Bill No. 5886 but that this Bill differentiates between alien workers with a valid working permit and those without such a permit, and gives a more favourable treatment to the former. The Committee requests the Government to provide information on the constitution of the subcommittee to ensure adequate representation of domestic workers in social dialogue, pursuant to Rule IV(17) of the IRR. For the other issues raised on freedom of association, the Committee refers the Government to its comments under Convention No. 87.

Articles 3(2)(b) and (d), 8 and 15. Migrant domestic workers. The Committee notes the extensive information provided by the Government on legislation covering migrant domestic workers. In particular, it notes that the main legislation applicable to migrant domestic workers is the Migrant Workers and Overseas Filipinos Act of 1995 (No. 8042), as amended by Republic Act No. 10022, and the Household Service Workers Reform Package of the Philippines Overseas Employment Administration (POEA). The latter was promulgated in 2006 to ensure better protection of the rights of household service workers through various measures, including an age limit of 23 years of age for deployment, employment contract verification, a “no-placement fee” policy, a minimum wage of US$400, pre-departure orientation and a pre-education programme, and assistance and counselling provided in the host countries. The Committee further notes legislation to protect domestic workers, including migrant domestic workers, from abusive practices of private employment agencies, which apart from the legislation cited above, includes RA10361 and the IRR, the POEA Rules and Regulations Governing the Recruitment and Employment of Land-based Overseas Workers, and the DOLE Revised Rules and Regulations Governing Private Recruitment and Placement Agency for Local Employment. The Committee recalls that it has been raising a number of issues with regard to migrant domestic workers on the application of other ILO Conventions. In particular, in its 2013 comments on the application of the Forced Labour Convention, 1930 (No. 29), the Committee noted that a great proportion of the 2 million Filipinos working abroad were female domestic workers in Asia and the Middle East, who frequently experienced abuses including unpaid wages, food deprivation, forced confinement in the workplace, and physical and sexual abuse. Traffickers often presented themselves as recruiters and used fraudulent recruitment practices, hiring fees, use of violence, withholding of travel documents and salaries, psychological intimidation and other practices, to force their victims into work. The Committee also noted that, according to the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW), despite the Government’s efforts to protect the rights of Filipino migrant workers abroad, abuse and exploitation continued, especially of women migrants. Moreover, private recruitment agencies continued to overcharge fees for their services and acted as intermediaries for foreign recruiters, which may increase the vulnerability of migrants, as well as the significant number of Filipino workers abroad who are victims of trafficking. The Committee further referred to the conclusions of the Special Rapporteur on trafficking in persons, especially women and children, of 19 April 2013, according to which trafficking for domestic servitude of Filipino domestic workers was one of the most prevalent forms of cross-border trafficking. The vast majority of women and children were clandestinely “recruited” by illegal agents to work as domestic workers, mostly in the Middle East, where victims are locked in their employers’ homes, exploited and physically and/or sexually abused. In its 2012 comments on the application of Conventions Nos 97 and 143, the Committee noted that almost one third of the Filipino overseas workers in 2010 were deployed in domestic work, 98 per cent of them being female migrant workers. In 2010, 94,880 female migrant workers, compared to 1,703 male migrant workers, were employed as household service workers. Among others things, the Committee requested the Government to indicate the underlying reasons for the age restrictions on the departure of household service workers, as well as whether any such restrictions were imposed on sectors in which predominantly male migrants are being deployed.

The Committee notes the Government’s information on the procedures for filing and investigation of complaints concerning the activities of private employment agencies, including for illegal recruitment. It also notes the Government’s information that the DOLE Manual of Procedures in Handling Complaints on Trafficking in Persons, Illegal Recruitment and Child Labor also functions as a guide in organizing a coordinated strength among concerned agencies, which may positively lead to the efficacious identification and prosecution of the perpetrators. The Government also indicates that it pursues cooperation programmes with other member States to ensure the effective application of Convention No. 189, including through agreements at the bilateral, regional and global levels in matters concerning the prevention of forced labour and trafficking in persons. Referring to its comments under Convention No. 29, the Committee requests the Government to provide further information on the measures taken, at the national and international levels, to strengthen the mechanisms to eliminate all forms of forced or compulsory labour in relation to domestic workers, especially migrant domestic workers recruited through private employment agencies. It further requests the Government to provide practical information on the investigations of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers, including migrant domestic workers. With regard to the issue of age restriction for the departure of household service workers, the Committee refers the Government to its comments under Conventions Nos 97 and 143.

Article 4. Child domestic workers. Worst forms of child labour. The Committee notes that under section III(16) of RA10361 and Rule VI(1) of the IRR, the minimum age for employment of a child in domestic work is 15 years. It also notes that under section III(16) of RA10361 and Rule VI(2) of the IRR, children between 15 and 18 are not allowed to work more than eight hours a day and in no case beyond 40 hours a week; they shall not be allowed to work between 10 p.m. and 6 a.m. of the following day; and shall not be engaged in work which is hazardous or likely to be harmful to the health, safety or morals of the children. RA10361 and the IRR also protect the right of child domestic workers to finish basic education and to access to alternative learning systems and, as far as practicable, higher education or technical vocational training. In its 2013 comments on the Worst Forms of Child Labour Convention, 1999 (No. 182), the Committee noted the ITUC’s allegations that hundreds of thousands of children, mainly girls, worked as domestic workers in the Philippines and were subject to slavery-like practices. In this regard, the Committee refers the Government to its observation under Convention No. 182 and trusts that the Government will provide information on these issues in this framework.

Article 10. Equal treatment between domestic workers and workers generally on working time. Stand by. The Committee notes that under section IV(20) of RA10361 and Rule IV(5) of the IRR, domestic workers shall be entitled to an aggregate daily rest period of eight hours per day. The Government further indicates that for migrant domestic workers, the POEA Rules as prescribed in the employment contract, stipulate the same. The Committee notes that while “hours of work and appropriate additional payment” are among the terms to be included in the employment contract (section III(11)(e) of RA10361 and Rule II(5)(e) of the IRR), the applicable legislation does not appear to regulate normal hours of work and overtime compensation. It also notes that the provisions of the Labor Code on working time, which do not apply to domestic workers, provide for a daily limit of eight hours per day (section 83). Under section 87 of the Labor Code, work may be performed beyond eight hours a day provided that the employee is paid for the overtime work an additional compensation equivalent to their regular wage plus at least 25 per cent thereof. The Committee reminds the Government that under Article 10(1) of the Convention, each Member shall take measures towards ensuring equal treatment between domestic workers and workers generally in relation, inter alia, to normal hours of work and overtime compensation. The Committee requests the Government to provide information on how these principles are ensured in practice. The Committee notes that the applicable legislation does not appear to include provisions on stand by and the Government provides no information on this point. It also notes that, according to section 84 of the Labor Code, which does not apply to domestic workers, hours worked shall include: (a) all time during which an employee is required to be on duty or to be at a prescribed workplace; and (b) all time during which an employee is suffered or permitted to work. The Committee requests the Government to provide information on the regulation of stand by pursuant to Article 10(3) of the Convention, and taking into consideration Paragraph 9 of the Domestic Workers Recommendation, 2011 (No. 201).

Article 11. Minimum wage. The Committee notes that under section IV(24) of RA10361, and its IRR (Rule IV(2)), minimum wages for domestic workers shall not be less than 2,500 Philippine pesos (PHP) a month (approximately US$50) for those employed in the National Capital Region (NCR); PHP2,000 a month (approximately US$40) for those employed in chartered cities and first-class municipalities; and PHP1,500 a month (approximately US$30) for those employed in other municipalities. The Government indicates that wage differences are established without discrimination based on sex. The Committee further notes that pursuant to RA10361, policy guidelines on minimum wage fixing for domestic workers on the proceedings of the National Wages and Productivity Commission (NWPC) and the Regional Tripartite and Productivity Wage Boards (RTPWBs) were adopted (NWPC Guidelines No. 01 – Series of 2014, as amended by Resolution No. 02 – Series of 2014). It also notes that, pursuant to Rule VIII(4) of the IRR, an advisory of the NWPC on competency-based wages for domestic workers was issued in February 2015, which provides for the adjustment of wages of domestic workers based on learned/acquired competencies certified under the Technical Education and Skills Development Authority (TESDA) National Certificate. The Committee further notes that in August 2014, the Office provided comments and recommendations to the Government with regard to: (1) the policy guidelines on minimum wage fixing for domestic workers; (2) the competency-based pay scheme for domestic workers; and (3) the assessment of the effectiveness of the minimum wage policy. Observing that domestic workers receive the lowest minimum wage among employees in the private sector, the Committee requests the Government to provide information on any follow-up given to the recommendations of the Office on minimum wages for domestic workers, as well as to provide information on any assessment of the effectiveness of the competency-based pay scheme and on the number of domestic workers that have been granted wage increases pursuant to the application of this scheme.

Article 14. Social security. The Committee notes that, under Rule IV(9) of the IRR, a domestic worker who has rendered at least one month of service shall be covered by the Social Security System (SSS), the Employees Compensation Commission (ECC), the Philippine Health Insurance Corporation (PhilHealth), and the Home Development Mutual Fund (also known as the Pag–IBIG Fund), and shall be entitled to all the benefits in accordance with their respective policies, laws, rules and regulations. The Government indicates that benefits under the SSS include retirement benefits, disability benefits, sickness benefits, maternity benefits, loans, and death and funeral benefits. PhilHealth provides a unified benefit package which includes inpatient hospital care and outpatient care. Membership of the ECC entitles the domestic worker to the granting of an employee’s compensation benefits when they suffer from work-connected injury, sickness or death. The Government indicates that the number of kasambahay registered with the SSS reached a total of 116,500 (as of February 2014); a total of 23,071 (as of December 2013) registered with the Pag–IBIG Fund; and 41,235 registered with PhilHealth (as of September 2013). The Committee observes that, taking the number of domestic workers in the Philippines in 2013 as the baseline, that is nearly 2 million, only around 6 per cent of domestic workers are registered with the SSS, 2 per cent with PhilHealth and 1 per cent with the Pag–IBIG Fund. The Committee further notes that, according to information available at the Office, the social security system has not yet been revised to be suitable for part-time domestic workers with multiple employers. Therefore, even if the law does not exclude them, these workers are de facto excluded from the application of the law. The Committee requests the Government to provide information on the measures taken, in collaboration with the relevant stakeholders and social partners, to encourage registration of domestic workers with social protection programmes, and on results achieved in this regard. It further requests the Government to provide information on the measures taken to extend social security coverage to domestic workers working for multiple employers and on the consultations held with the concerned social partners in this regard (Article 14(2)).

Article 17(2) and (3). Complaint mechanisms. Inspection. The Government indicates that the Regional Director of the DOLE or his duly authorized representative shall have access to the private employment agencies’ records which include records of agreement/contract of hired and deployed domestic workers. For migrant domestic workers, the Rules and Regulations Governing the Recruitment and Employment of Land-based Overseas Workers shall apply and compliance of licensed recruitment agencies is monitored through inspection activities. The type of inspection conducted by the POEA includes: (a) regular inspection, (b) spot inspection, (c) salvo inspection, and (d) regional inspection. The Government further indicates that the DOLE is not allowed to inspect household premises, having due respect for privacy. However, the domestic worker is free to file labour-related complaints to any DOLE offices having jurisdiction to her/his area of work, and Rule XI of the IRR shall apply in settling/disposing of labour disputes. The Committee notes the Government’s information that as of June 2014, a total of 169 requests for assistance were filed by kasambahay at the National Conciliation and Mediation Board central office and in DOLE regional offices. Of this number, 108 cases were settled which regarded alleged termination, non-payment of salary and other benefits, medical/financial assistance claims, non-remittance of social security benefits, no rest day, physical violence and requests for the return of personal belongings. The Committee recalls that, by virtue of Article 17(2) of the Convention, each Member shall develop and implement, inter alia, measures for labour inspection, with due regard for the special characteristics of domestic work. In accordance with Article 17(3) in so far as compatible with national laws and regulations, such measures shall specify the conditions under which access to household premises may be granted, having due respect for privacy. Under Paragraph 19(b) of Recommendation No. 201, Members, in consultation with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers, should take measures to provide an adequate and appropriate system of inspection and adequate penalties for violation of occupational safety and health laws and regulations. The Committee observes that the Convention’s provisions cited above consider the need to protect the privacy of the household while at the same time providing for a role for the labour inspectorate when it comes to ensuring compliance with laws regulating domestic work. It also notes in this regard that the notion of “measures for labour inspection” refers to the whole range of measures that labour inspectorates may take, including not only enforcement and inspection visits but also information and prevention. The Committee requests the Government to provide information on the measures envisaged to monitor compliance with the provisions of the Convention especially with regard to the working and living conditions, including occupational safety and health of domestic workers, that give effect to Article 17(2) and (3) of the Convention.