Solicitud directa (CEACR) - Adopción: 2020, Publicación: 109ª reunión CIT (2021)

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

Otros comentarios sobre C189

Solicitud directa

2020
2016

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The Committee notes the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th session (June 2020). The Committee therefore examines the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2018 and 2019.

The Committee notes the observations of the Confederation of German Employers' Associations (BDA), received on 28 August 2018, as well as those of the International Organisation of Employers (IOE), received on 31 August 2018, in which the IOE endorses the observations of the BDA. The Committee requests the Government to provide its comments in this respect.

Article 1. Definitions. In its previous comments, noting the Government's indication that German law contains no special definition of domestic workers, the Committee requested the Government to indicate any measures taken or envisaged to incorporate the definitions of domestic work and domestic worker in national legislation or collective agreements. In its response, the Government refers to its first report, indicating that domestic workers are workers within the meaning of German employment law. The Committee once again notes that, given the specific characteristics of domestic work, specific attention should be given to providing a definition of domestic worker and domestic work in relevant national legal instruments. The Committee invites the Government to consider incorporating definitions of domestic work and domestic worker into national legislation or collective agreements that take into account the specific characteristics of domestic work and domestic worker.

Article 2. Exclusions. In its 2016 direct request, the Committee noted that section 18(1) (iii) of the Working Hours Act excludes caregivers from the scope of its application. The Committee requested the Government to provide further information explaining in detail the reasons for this exclusion, as well as information on prior consultations held with the most representative organisations of employers and workers in this context. The Government explains that in providing for this exemption, which defines caregivers as “persons living in a common household with those for whom they are responsible for raising, looking after or caring”, the legislator had in mind a particular category of persons: “relief parents” living in SOS Children's Villages. These persons live in the same household as the children entrusted to their care. The Government further indicates that the exemption applies only under the particular terms of section 18 (1) (iii) of the Act, and that the circumstances of each individual case must be taken into account in making this determination. In this context, the Committee notes that the Federal Administrative Court has ruled that the Working Hours Act should also apply to house parents who work in residential groups that provide “alternating care” for children and young persons (Judgment of 8 May 2019 - BVerwG 8 C 3.18). It further notes the indication of the Government that the exclusion stipulated in section 18 (1) (iii) of the Working Hours Act does not apply to relief parents for SOS Children's Villages, foster parents, or to comparable workers, including “live-in-nurses and caregivers”. With respect to consultation, the Government indicates that the social partners were provided with the opportunity to comment on the draft Contract Act, as well as on the draft of the memorandum on ratification of the Convention. The Committee notes that the Government does not specifically indicate, however, whether the social partners were consulted with regard to the application of any exclusion under Article 2. The Committee requests the Government to indicate in its next report measures taken or contemplated with a view to amending section 18(1) (iii) of the Working Hours Act, so as to ensure that categories of workers listed as “workers who share a common household with persons entrusted to them and who bring them up, nurse them or care for them” are ensured the protections afforded by the Convention.

Article 3(1), (2)(a) and (3). Freedom of association and collective bargaining. The Government reiterates that domestic workers' right to freedom of association and collective bargaining is protected under section 9 (3) of the Basic Law (the Constitution), as is the case with other workers generally. The Committee once again recalls that the specific characteristics of domestic work, which often involve triangular employment relationships, a high degree of dependence on the employer, particularly in the case of migrant domestic workers, and the frequent isolation of domestic workers in their workplaces, are all factors that make it difficult for domestic workers to form and join workers' organisations and to collectively bargain. The Committee therefore requests that the Government provide information on measures taken or envisaged to ensure the effective exercise of domestic workers' freedom of association and collective bargaining rights in practice, including measures to inform domestic workers and their employers of their rights and obligations in this context.

Article 3(2)(c) and Article 4. Child labour. Minimum age. The Committee requested the Government to indicate the nature of the exceptions to the protections afforded to children who work and the manner in which they are applied in the context of domestic work. The Government was also requested to describe the measures taken to ensure that work performed by domestic workers under the age of 18 does not interfere with their opportunities for further education and training. The Government reiterates that section 5(1) of the Youth Employment Protection Act (Jugendarbeitsschutzgesetz) prohibits the employment of children and young people under fourteen who are required to attend mandatory full-time education. This prohibition, however, does not apply to the employment of children over thirteen, with the agreement of the primary carers, provided that the work is not onerous and is suitable for children. The Government further indicates that the work is not considered onerous if, given its nature and the particular conditions under which it is carried out, it does not adversely affect children's safety, health and development, their school attendance, their involvement in preparatory programmes for the choice of a career or vocational training, or their ability to successfully follow classes. The Committee requests the Government to provide information on the measures taken to ensure that domestic work performed by children over thirteen and young people under the age of eighteen does not interfere with their opportunities for further education and training. The Government is also requested to provide information on the number of inspections conducted in households where young persons are engaged in domestic work, the number of offences reported and the penalties imposed.

Article 3(2)(d). Elimination of discrimination. The Committee previously requested the Government to indicate the manner in which the principle of equality of opportunity and treatment is ensured for both men and women in domestic work, particularly in respect of terms and conditions of employment, including remuneration. The Government indicates that the Minimum Wage Act applies to all national and migrant workers, including domestic workers. It further indicates that section 3(1) of the Pay Transparency Act, as well as paragraphs (1) and (7) of section 6 in conjunction with section 2(1)(2) and section 8(2) of the General Equal Treatment Act, prohibit gender-based pay discrimination. These provisions are applicable to all workers, including domestic workers. The Transparency in Wage Structures Act (Entgelttransparenzgesetz), which came into force on 6 July 2017, requires application of the principle of equal pay for women and men for equal or equivalent work to all workers. The Act also introduces an individual right to information for workers. These provisions benefit domestic workers, as they apply to all workers in sectors typically made up of small businesses. Taking into consideration the specific characteristics of domestic work, the Committee requests the Government to provide detailed information on the measures adopted or envisaged to raise the awareness of domestic workers concerning their right to equality of opportunity and treatment and to guarantee in practice the right of domestic workers to equal remuneration for women and men for work of equal value.

Article 5. Effective protection against all forms of abuse, harassment and violence. In its 2016 direct request, the Committee invited the Government to indicate the measures taken to give effect to this Article of the Convention, provide information on the impact of such measures, and on the manner in which it is ensured that domestic workers are informed of the protections available to them. The Government indicates that in the event that they are subjected to any form of violence, including psychological violence, the women affected, persons around them and specialists may phone the nationwide “Violence against Women” helpline set up by the Federal Government. It is easily accessible, anonymous and available free of charge 365 days a year at any time of the day or night. Expert advice is provided over the telephone in 18 languages, by e-mail or online chat and via sign language interpreters. Upon request, female victims of violence can be placed in local support and counselling centres. The Government does not provide information regarding the manner in which male domestic workers are protected against workplace abuse, harassment and violence. The Committee requests the Government to provide information on the manner in which this Article is given effect in the case of both female and male domestic workers, as well as on the manner in which it is ensured that domestic workers are informed of the protection available to them against all forms of abuse, harassment and violence in the workplace. It further requests the Government to provide detailed information on the nature and number of phone calls or complaints received reporting harassment, abuse and violence in the context of domestic work, and the assistance provided.

Article 7. Information on terms and conditions of employment. In response to the Committee's 2016 comments, the Government indicates that domestic workers are covered by the same provisions of labour and social security law as all other workers. In addition, fair terms of employment and decent working conditions guaranteed under national legislation apply to all workers, including domestic workers. The Government further indicates that the Employment Conditions Documentation Act (Nachweisgesetz) requires employers to draw up, sign and give the essential contractual terms to the worker in writing, including arrangements governing repatriation, no later than one month after the agreed commencement of employment. Examples of the essential contractual terms about which the employer is obliged to inform the worker in writing are listed in the Employment Conditions Documentation Act. The Committee notes that the Federal Foreign Office organises information events annually for domestic workers in diplomatic households. Information on rights and obligations is provided at these events, and domestic workers working in diplomatic households have an opportunity to exchange experiences. In addition, the embassies are sent a circular requesting them to allow their domestic workers to participate. The Committee draws the Government's attention to the fact that Article 7 of the Convention applies to all domestic workers and not only to domestic workers in diplomatic households. It, therefore, invites the Government to continue to provide detailed and up-to-date information concerning the measures taken or envisaged to ensure that all domestic workers, including regular migrant domestic workers, are duly informed of their conditions of employment as laid down in the Convention.

Article 8(1) and (3). Migrant domestic workers. The Committee previously requested that Government indicate the manner in which it is ensured that migrant domestic workers recruited in one country for domestic work in another receive a written job offer or contract of employment prior to crossing the border that is enforceable in the country in which the work is to be performed, which sets out the terms and conditions of employment in accordance with Article 7 of the Convention. The Government indicates that third-country nationals may work in Germany either on a self-employed basis or in the formal employment, under the same terms and conditions as German workers, if they hold a residence permit. The prerequisite for the issuance of a residence permit for the purpose of employment is a specific offer of employment. While the employment is ongoing, the employer is also required to provide information about salary, working hours and other terms of employment to the Federal Employment Agency (BA) to enable it to monitor the employment situation of foreign workers. Information on the minimum working conditions (minimum wage level and deductions) to which they are entitled is available to workers in German, English and French on the webpage of the customs authorities. In addition, further special provisions regulate the employment of domestic workers in diplomatic households and those who are working in Germany on a temporary basis for their employer or on behalf of a company based abroad (section 13 of the Employment Ordinance). The Committee requests the Government to provide information on the manner in which it ensures adequate protection for and prevents abuses of self-employed migrant domestic workers active in its territory.

Article 8(4). Repatriation. The Committee requested the Government to 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 contract. The Government indicates that under section 26(1) of the BeschV, the residence permit granted to foreign domestic workers is limited to the term of the employment relationship (section 7(2) of the Residence Act). Upon expiry of the residence permit, the foreign workers are required to leave Germany, unless they secure alternative employment, for which a further residence permit may be granted. The Government further indicates that in case of early termination of employment the immigration authority has the discretion to set the term of the residence permit retrospectively (second sentence of section 7(2) of the Residence Act) while taking into account all the circumstances of the individual case. The Committee takes note of the information supplied by the Government, which responds to the points raised previously.

Article 9 and 10. Measures ensuring appropriate rest and leave. Keeping possession of travel and identity documents. With respect to the application of these Articles, the Government indicates that rest and leave requirements are met only where workers are released from their work duties for the purpose of rest, at which point they can dispose of their time as they please. It further indicates that, under the third sentence of section1(1) of the German Act on Identity Cards and Electronic Identification (Personalausweisgesetz), identity cardholders cannot be required to deposit their identity cards or otherwise surrender possession of them. The Committee notes that the general property protection provisions of the Civil Code protect the holder of the passport or identity card against these being seized by third parties. The Committee takes note of the information supplied by the Government, which responds to the points raised previously.

Article 11 and Article 12(2). Minimum Wage. Payment in kind. The Committee requested the Government to indicate the measures taken to give effect to these Articles, thereby ensuring that all male and female domestic workers enjoy minimum wage protections. The Committee further requested the Government to indicate whether limitations are imposed on the payment in kind and their applicability to domestic workers. The Government reiterates that the Minimum Wage Act applies without distinction to all workers, including domestic workers. The Committee notes that information on minimum working conditions (minimum wage and its calculation) is available in German, English and French on the customs administration's website (information also includes cases in which per diems are not permitted to count towards the minimum wage). With regard to the payment of wages, the Government indicates that under the Minimum Wage Act, the minimum wage is, on principle, only payable in money and any deduction for payments in kind is, as a matter of principle, out of the question. However, the Government further indicates that section 197(2) of the Trade Ordinance and section 107(2) of the Industrial Code ensure that, in case of an agreement, the portion of the payment in kind does not exceed the attachable portion of wages. That means that the employer must always pay workers the non-attachable portion of their wages in cash. Only the balance of the wages may be paid in kind. The Committee notes that the non-attachable amount has since 1 July 2019 been EUR 1,179.99 net a month. The Committee takes note of the information supplied by the Government, which responds to the points raised previously.

Articles 13 and 14. Effective measures to ensure occupational safety and health. Effective access to social security. The Government reports that domestic workers are protected in Germany against work-related accidents and occupational illnesses under sections 26 and onwards of the Social Code, Book VII. These provisions require the statutory occupational accident insurance provider to use all appropriate resources to reinstate the health and fitness of the domestic workers and to pay financial compensation to them or their surviving dependents. The Committee notes that where the employer breaches his duty to undertake protective measures under section 618 of the German Civil Code, the worker is entitled to refuse to work without losing remuneration and may bring charges against the employer. With regard to social security protection, the Government reiterates that domestic workers, like other comparable workers, are protected through health, pension, accident, nursing and unemployment insurance (employment promotion). It further indicates that domestic workers benefit from the same regulations concerning entitlement to maternity pay, parental allowances and parental leave as other workers. The Committee takes note of detailed information provided by the Government with regard to the social and health insurance required for domestic workers in low-paid jobs (“mini-jobs” paying up to €450 per month). The Committee requests the Government to provide up-to-date statistics on the number of domestic workers, including those in low-paid jobs (“mini-jobs”) registered with the general social protection scheme, disaggregated by age and sex.

Article 15. Conditions for the operation of private employment agencies. Fee charging and cross-border mediation. The Committee requested the Government to provide information on the conditions governing the operation of private employment agencies and to indicate the measures taken to ensure that fees charged by private employment agencies are not deducted from the remuneration of domestic workers and that adequate machinery and procedures exist for the investigation of complaints. The Committee notes from the information provided by the Government that the provisions of Book III of the Social Security Code (SGB III) regulate the registration, accreditation, activities and remuneration of private employment agencies in Germany. It further notes that the existence of an employment contract is a prerequisite for placements of foreign domestic workers into employment by private agencies. The Government indicates that private agencies must be independent of the parties and cannot be linked to the worker or the employer either legally, commercially or personally. The Government further indicates that sections 296 and 297 of the SGB III, stipulate, among other things, that employment contracts with private agencies must be in writing. With regard to measures taken or envisaged to prevent abuses and fraudulent practices in relation to domestic workers recruited from abroad, the Government indicates that under section 15c of the Employment Ordinance (BeschV), a residence permit for full-time employment subject to compulsory insurance may be granted with a “Vorrangprüfung”, a prioritisation test, for a term of up to three years for domestic work and essential daily nursing assistance in households with persons in need of nursing care (SGB XI). This is done in cases where the persons concerned have been placed into work under an agreement between the Federal Employment Agency and the labour administration organisation of the country of origin covering the process and the selection of workers. In such cases, domestic workers cannot be placed into work via private employment agencies and are protected against abuse on the basis of bilateral agreements. The Government further indicates that, given the existing protection measures, there is no need for special bilateral agreements between the Federal Employment Agency and the labour administration organisations of third countries. The Government adds that workers from the EU Member States working in Germany are given equal treatment with German workers as far as employment, remuneration and other working conditions are concerned. The Committee notes that the Government does not provide information regarding the measures taken to ensure that adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers. The Committee requests the Government to provide information on measures taken or envisaged to ensure that private employment agencies ensure the equal treatment of all migrant domestic workers. It further requests the Government to indicate the measures taken to ensure that adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices of private employment agencies in relation to domestic workers.

Articles 16 and 17 (1). Judicial decisions and complaints mechanisms. The Government has not provided information in its report on the establishment of effective and accessible complaint mechanisms to ensure compliance with national laws and regulations for the protection of domestic workers. Recalling the particular vulnerability of domestic workers, the Committee requests the Government to indicate the measures adopted or envisaged to establish effective and accessible complaint mechanisms and means of ensuring compliance with national laws and regulations for the protection of domestic workers, and particularly for migrant domestic workers.

Article 17(2) and (3). Labour inspection and penalties. The Committee notes the information provided by the Government on preventing and combating human trafficking. It further notes that under the Act against illegal Employment and Misuse of Social Payments (11 July 2019), the Customs Authority's Tax Enforcement Unit for Undeclared Work has now the power to review exploitative terms of employment and conduct investigations in the area of self-employment even in the absence of a specific work location. The Committee requests the Government to continue providing information on the specific measures adopted or envisaged in relation to labour inspection with due regard to the special characteristics of domestic work, as well as information on the number of inspections in the sector, the number of violations detected and penalties imposed.

Article 18. Consultations. The Committee requests the Government to provide information on any consultation held with the most representative workers' and employers' organisations, as set out in Articles 2, 14 and 18 of the Convention.

Judicial decisions. Part IV of the report form. The Committee takes note of the Court decisions referenced in the Government's reports in relation to the application of the Convention. It takes particular note of the decision of the Düsseldorf State Labour Court, of 10 May 2016 (Case No. 14 Sa 82/16), holding that failure to apply the German Protection Against Dismissal Act (Kündigungsschutzgesetz) to domestic workers does not infringe the Convention, as the Convention does not provide protection against dismissal. The Committee requests the Government to continue to 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.

Application of the Convention. Part V of the report form. The Government indicates that the true extent of illegal employment in domestic households is difficult to estimate. While according to information from the Mini-Job Centre, the number of commercial “mini-jobs” in Germany has remained constant for years, the number of people in “mini-jobs” working for private households who are receiving special support has more than tripled, from about 84,000 in 2004 to a yearly average in 2018 of some 286,000 persons. The Government also indicates that to strengthen the legal use of domestic services in “mini-jobs” and the household vetting process, the Mini-Job Centre launched a “Domestic Jobs Exchange” in 2014. The web-based service platform offers users free job matching services, which includes domestic work. The Committee notes that by the end of June 2019 there were already around 74,000 registered users and about five million hits on its website. The Committee requests the Government to continue to provide general indications on the manner in which the Convention is applied in Germany.