Demande directe (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Convention (n° 189) sur les travailleuses et travailleurs domestiques, 2011 - Italie (Ratification: 2013)

Autre commentaire sur C189

Demande directe

2022
2016

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Article 1 of the Convention. Definitions. The Committee welcomes the information provided in the Government’s first report. The Government refers to the definition of domestic worker contained in article 2240 of the Italian Civil Code, which provides that domestic work consists of rendering services of a domestic nature. In addition, article 1 of Law No. 339 of 1958 provides that domestic workers are workers of either sex who, regardless of job title, perform personal domestic services continuously and predominately, at least four hours a day for the same employer, whether paid in money or in kind. The National Collective Labour Agreement on the regulation of the domestic work relationship (CCNL) of 1 July 2013 defines domestic workers in its section 1(2) as “those who work, including non-Italian or stateless persons, regardless of the manner in which they are paid, in functions relating to family life, and in family-like living arrangements (military or religious) taking into account certain fundamental aspects of the relationship”. The Government explains that domestic work is performed in the home or the residence of the employer (individual or family grouping). The Government indicates that the definition of domestic worker includes not only persons employed in normal family chores (for example, caregivers or governesses) but also includes those employed to provide various services, as long as these are directed at individual aspects of family life, such as gardeners, household drivers of motor vehicles or private secretaries). The Committee requests the Government to keep the Committee informed of any developments in relation to the definition of “domestic work” and “domestic worker” under national legislation, collective agreements or court decisions. Given that the expiration of the CCNL is due at the end of 2016, the Committee requests the Government to provide information on the coverage of domestic workers under collective agreements.

Article 2. Exclusions. The Government indicates that the following workers cannot be considered to be domestic workers and are therefore not covered under the domestic work legislation: office cleaners or stable hands, to the extent that they do not render personal or family services; “au pairs”, typically students, who render domestic work services in exchange for lodging; and relatives of the employer or those with ties of affection to the employer, who presumably render services without payment. The Government does not indicate whether or not the social partners have been consulted with respect to these exclusions. The Committee requests the Government to explain in detail the reasons for the exclusion of the categories of workers identified, and provide information on the consultations held prior to such exclusions with the most representative organizations of employers and workers, and where they exist, with organizations representative of domestic workers as well as those representative of employers of domestic workers.

Article 3(1), (2)(a) and (3). Human rights. Fundamental principles and rights at work. The Government indicates that Italian legislation guarantees the fundamental rights of all workers, including domestic workers, including with regard to freedom of association. The Committee notes however that the Government provides no information indicating the manner in which these rights are protected. The Committee requests the Government to specify the measures taken to ensure the effective promotion and protection of the fundamental human rights of all domestic workers, including their fundamental rights at work, as set out in Article 3(1) and (2)(a)–(d) of the Convention. In particular, and taking into account the particular characteristics of domestic work, the Committee requests the Government to describe in detail the manner in which domestic workers’ freedom of association and collective bargaining rights are ensured in practice.

Article 4. Minimum age for domestic workers. Referring to section 25 of the CCNL, the Government indicates that the minimum age for domestic work is the same as that provided for all workers, and cannot in any event be lower than the age at which the ten-year period of obligatory schooling ceases, which therefore cannot be less than 16 years of age. The Government indicates, moreover, that the activity to be carried out must also be compatible with the particular health requirements of minors. It adds that section 22 of the CCNL requires the employer of a minor domestic worker to “facilitate the domestic worker’s attendance in schooling to obtain a diploma from the compulsory school institution, or a specific professional certificate”. The Committee requests the Government to provide information on the impact of measures taken to ensure that work performed by domestic workers below the age of 18 does not deprive them of compulsory education or interfere with further education or vocational training opportunities, and the manner in which these measures are enforced in practice, particularly given the characteristics of domestic work.

Article 5. Effective protection against all forms of abuse, harassment and violence. The Government indicates that domestic workers enjoy the same protections provided to all other workers. In this regard, domestic workers are entitled to lodge complaints with the police, magistrates and with labour inspectors concerning any form of abuse or violence. Recalling the specific characteristics of domestic work, especially in the case of migrant domestic workers and caregivers, who are highly vulnerable to abuse and exploitation, the Committee requests the Government to provide detailed information on the measures taken or envisaged to ensure that domestic workers are effectively protected against all forms of abuse, harassment and violence. The Committee also requests the Government to provide information on the impact of such measures, as well as on the manner in which it is ensured that domestic workers are informed of the protections available to them under the national legislative framework.

Article 6. Fair terms of employment, decent working and living conditions. The Government states that national legislation affords domestic workers the same protections as all other workers. In respect of domestic workers who reside with their employer, section 6 of Law No. 339 of 1958 establishes that, in the context of the employment relationship, where the employer undertakes to provide food and lodging, the employer is required to provide an environment that is not dangerous to the worker’s physical or moral health, and to safeguard the worker’s health, respect the domestic worker’s moral freedom, and provide the worker with the necessary time to fulfil civil and religious obligations. The Committee requests the Government to indicate the measures taken to ensure that all domestic workers, including live-in domestic workers, enjoy fair terms of employment, decent working conditions and, if they reside in the household, decent living conditions that respect their privacy, and the manner in which such measures are ensured in practice.

Article 7. Information on terms and conditions of employment. The Government indicates that the employer hires the domestic worker directly and has the freedom to define the contractual terms and conditions of the employment through a letter of recruitment. It refers to section 1 of Legislative Decree No. 152 of 26 May 1997, which is applicable to domestic work and requires the employer to inform the worker of the conditions applicable to the employment contract and to indicate explicitly among other things: the date on which the employment commences, the duration of the employment, the probation period, the job classification, working hours, daily and weekly rest periods, holidays, remuneration and other conditions. The conditions of employment cannot be inferior or less favourable than those provided by law or collective agreement. Section 6(1) of the CCNL sets out the conditions of employment that should be contained in the employment contract (expressed in the letter of recruitment), in addition to any specific optional clauses. The Committee notes that the conditions to be specified in the letter of recruitment are in accordance with the particulars listed in Article 7, with the exception of terms of repatriation and terms and conditions relating to the termination of the employment relationship (Article 7(j) and (k)). Section 6(2) of the CCNL provides that the recruitment letter must be signed by both parties, with each party to retain a copy. The Committee notes the Government’s indication that, given the particular characteristics of domestic work, particularly caregiving work, domestic workers are not subject to the standard legal limits on working hours. In this respect, it notes that section 15 of the CCNL sets maximum weekly working hours at 54 hours per week and a maximum of ten non-consecutive hours of work per day. Domestic workers who do not reside in the employer’s household may work a maximum of 40 hours per week, distributed between five or six days, and a maximum of eight non consecutive hours per day. Employers are required to provide domestic workers with weekly as well as daily and nightly rest periods. Nevertheless, taking into account the particular characteristics of domestic work, particularly caregiving work, sections 16 and 18 of the CCNL provide special regulation of working hours for overtime, night work and holidays and sections 20 and 21 of the CCNL provide for leave and absences. Moreover, simplified procedures are established for hiring and dismissal of domestic workers under Legislative Decree No. 185 of 28 November 2008. The Government indicates that, taking into account the particular nature of the domestic employer, the undeclared employment of a domestic worker will not result in the application of the so-called maximum level of sanctions. In the event of a failure to provide or delay in providing the required communication, an administrative sanction is applicable, which may range from €100 to €500 for each such domestic worker. The Committee requests the Government to indicate the measures taken to ensure that domestic workers are informed of their terms and conditions of employment – especially with respect to the elements listed in this Article – in an appropriate, verifiable and easily understandable manner, particularly in respect of migrant domestic workers placed to work in Italy. Please also provide information, including statistical information, regarding the manner in which the provisions of this Article are applied in practice, particularly in the case of foreign domestic workers, and to provide information on the number of incidents of undeclared work identified and the sanctions imposed.

Article 8(1)–(4). Migrant domestic workers. The Government indicates that national legislation applies also to foreign domestic workers. Section 22 of Legislative Decree No. 286 of 25 July 1998 (On Immigration) provides for a one-stop shop process for immigration (Sportello unico per l’immigrazione) in each province that is responsible for the entire hiring process of foreign workers. The employer wishing to hire a foreign worker must provide to the one-stop immigration authority for the province concerned information regarding the proposed employment contract. Within 60 days from receipt of the employer’s request, the immigration authority office communicates the relevant documentation to the consulate of the country of origin of the worker and, within eight days of entry into the country, the foreign worker must come to the one-stop immigration office to sign the contract. A copy of the signed contract is kept by the immigration authority, with copies transmitted to the consulate of the worker’s country of origin and to the employment agency concerned. The Government indicates that the Ministry of Labour and Social Policy has finalized bilateral agreements on migration with a number of countries, including: Egypt; Morocco; Albania; Republic of Moldova; and Sri Lanka, to strengthen the legal channels of entry for foreign workers. The Committee requests the Government to 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, as required under Article 7 of the Convention. The Committee further requests the Government to provide information on the measures taken in cooperation with other ILO Members to ensure the effective application of the Convention to migrant domestic workers, including on the protections afforded to migrant domestic workers under the bilateral agreements to which the Government refers. Please also 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 employment contract.

Articles 9 and 10. Freedom to choose whether to reside in the household. Measures ensuring appropriate rest and leave. Possession of travel and identity documents. The Government indicates that the place of employment is agreed at the time that the contract of employment is established. Section 15(4) of the CCNL establishes that the live-in domestic worker is entitled to a rest period of at least 11 consecutive hours a day and, depending upon the worker’s daily hours of work, he or she is entitled to an unpaid rest period, normally in the afternoon, of not less than two hours, during which the worker may leave the residence of the employer. Section 14 of the CCNL establishes that the weekly rest period for live-in workers must be at least 36 hours, 24 of which must be enjoyed on Sunday. The remaining 12 hours may be taken on any other day of the week, as agreed by the parties. The Sunday rest period is not revocable. Section 18 of the CCNL establishes that regardless of the duration and distribution of working hours, for each year of service with the same employer, the worker is entitled to 26 days of annual leave. The Government provides no information regarding whether Italian or foreign domestic workers have any legal obligation to surrender their passports or travel documents to their employers. The Committee requests the Government to indicate how it is ensured that effect is given to the provisions of subsections (a) and (b) of Article 9. The Government is also requested to indicate the measures taken or envisaged to ensure that domestic workers are entitled to keep in their possession their travel and identity documents, and the manner in which these measures are applied in practice.

Article 10. Equal treatment between domestic workers and workers generally on working time. The Government indicates that domestic workers are guaranteed equal treatment with other workers in relation to working hours, overtime, daily and weekly rest periods and holidays, taking into account the particular characteristics of domestic workers. The Government refers to the following sections of the CCNL: 15 (hours of work); 16 (overtime); 15(4) (daily rest periods); 14 (weekly rest period); and 18 (holidays). The Committee notes that the Government provides no information in respect of subsection (3) of Article 10. The Committee requests the Government to indicate the measures taken to ensure that domestic workers enjoy the minimum period of weekly rest of at least 24 consecutive hours, particularly live-in domestic workers. It also requests the Government to specify the laws, regulations or collective agreements giving effect to the provisions of Article 10(3) of the Convention.

Article 11. Minimum wage. The Government indicates that the minimum wages of domestic workers are established in annexes A, B, C, D, E and G to the CCNL and are reviewed annually. The Committee requests the Government to provide updated information on the minimum wages set by law or collective agreement, and to indicate the measures taken to give effect to this Article, ensuring that all male and female domestic workers enjoy minimum wage protection without discrimination on the basis of sex.

Article 12(2). Payment in kind. The Government indicates that domestic workers’ remuneration may take into account food and lodging. On work days, these are provided, whereas during days not worked (holidays, sick days), an indemnity is payable in lieu. Section 35 of the CCNL establishes that the board to which the domestic worker is entitled should ensure healthy and adequate nourishment. The employer is required to provide the live-in worker with suitable lodging and protect the worker’s dignity and privacy. The agreed value of food and lodging is set in Annex F of the CCNL and is reviewed annually. The Committee requests the Government to indicate whether national laws, regulations, collective agreements or arbitration awards impose limitations on payment in kind. Please also provide updated information on the laws, regulations or collective agreements regulating the modalities of the payment of wages to domestic workers.

Article 13. Occupational safety and health. Section 27(1) of the CCNL establishes that all workers have the right to a safe and healthy workplace, on the basis of legislation, relative to the domestic workplace. The Committee requests the Government to provide detailed information on the measures taken to ensure the occupational safety and health of domestic workers, due regard being taken of the specific characteristics of domestic work, as well as on the impact of such measures. It also requests the Government to indicate the consultations held in this regard with organizations of employers and workers and with organizations representative of domestic workers and those representative of employers of domestic workers, where these exist.

Article 14(1). Social security protection. The Government states that domestic workers enjoy the same access to social benefits as all other workers. It adds, that, pursuant to Presidential Decree No. 1403 of 31 December 1971, domestic workers are entitled, among other benefits, to disability insurance, an old-age pension, family allocations, maternity benefits, occupational illness and accident insurance. The Committee requests the Government to indicate the measures taken and their application in practice to ensure that domestic workers enjoy conditions that are not less favorable than those applied to workers generally in respect of social security protection, including with respect to maternity. Please also provide information on prior consultations held with employers’ and workers’ organizations as well as organizations representative of domestic workers and organizations representative of employers of domestic workers in respect of such measures.

Article 15(1)(a), (b) and (e). Conditions for the operation of private employment agencies. Fee charging. The Government indicates that Legislative Decree No. 276 of 10 September 2003, which regulates the operation of private employment agencies, does not contain provisions specific to certain occupations, such as domestic workers. The Government further indicates that there are no bilateral, regional or multilateral agreements in place aimed at preventing abuses and fraudulent practices in relation to the recruitment of domestic workers. It indicates that section 11 of Legislative Decree No. 276 prohibits private employment agencies from charging fees or receiving compensation from workers. The Committee requests the Government to provide information on the conditions governing the operation of private employment agencies recruiting or placing domestic workers. Please also indicate the measures taken or envisaged to ensure that adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of such agencies in relation to domestic workers, particularly foreign domestic workers placed from abroad. The Committee further requests the Government to indicate the measures taken to ensure that fees charged by private employment agencies are not deducted from the remuneration of domestic workers.

Articles 16 and 17. Complaints mechanisms and access to justice. Judicial decisions. The Government indicates that domestic workers enjoy the same access as other workers to courts, tribunals or other dispute resolution mechanisms. In addition, section 46 of the CCNL establishes that, for all individual disputes relating to its application, the parties may avail themselves of conciliation services available under the Code of Civil Procedure, prior to initiating legal proceedings. The Committee requests the Government to provide information on the functioning and impact of the formal and informal conflict resolution mechanisms available to domestic workers, including measures for inspection, enforcement and penalties, having due regard to the special characteristics of domestic work. The Committee also requests the Government 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 (Part IV of the report form).

Application of the Convention in practice. The Committee requests the Government to provide detailed information providing a general appreciation of the manner in which the Convention is applied in Italy, including extracts from inspection reports and information on the number of workers covered by the measures giving effect to the Convention, disaggregated by sex and age, as well as information on the number and nature of infringements reported and sample model contracts for domestic work, if available.