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

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

Autre commentaire sur C189

Demande directe

2020
2016

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The Committee welcomes the Government’s first report and the observations of the German Confederation of Trade Unions (DGB), received on 29 September 2016. The Government is requested to provide its comments in this respect.

Article 1 of the Convention. Definitions. The Government indicates that German law contains no special definition of domestic workers, and that household employees are considered as workers within the meaning of German labour law. The Committee notes that because of the specific characteristics of domestic work, specific attention should be given to a definition of domestic workers and domestic work in relevant national legal instruments. The Committee therefore requests 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.

Article 2. Exclusions. The Government indicates that, based on section 18(1)(3) of the Working Hours Act, caregivers – defined as persons living in a common household with those for whom they are responsible to raise, look after or care for – are excluded from the Act’s scope of application. The Government adds that, because caregivers are often required to stay with their employers for long periods and often reside with them for the purpose of assisting them on a 24-hour basis, it is not possible to distinguish between their leisure and working time. The Government indicates that, for this reason, it decided to exclude this category of workers from the application of the Convention. The Government adds that the social partners participated in the legislative process for ratification and raised no objections in this regard. The DGB considers that it is not clear whether so-called “live-in-nurses and caregivers” are in fact excluded from the scope of the Convention. It refers to a 2011 parliamentary request for clarification, stating that the Government indicated that a case-by-case approach should be taken. In the DGB’s view, such an approach would facilitate abuse. It considers that 24-hour caregivers should be included in the definition of domestic workers, since they are neither employed nor paid as nurses. The DGB adds that caregivers are often called upon to work excessive hours, as they are required to be on call around the clock. Migrant domestic workers are especially vulnerable to exploitation. According to the DGB, many of these workers do not have their own room in the employer’s household and often they are expected to stay next to their patient at all hours, including throughout the night. The Committee requests the Government to provide further information explaining in detail the reasons for the exclusion of caregivers from the application of the Convention. It also requests the Government to provide information on prior consultations held with the most representative organizations of employers and workers in this context.

Article 3(1), (2)(a) and (3). Freedom of association and collective bargaining. The Government states that the rights to freedom of association and collective bargaining are protected under section 9(3) of the Basic Law (the Constitution), which also applies, without any restrictions, to domestic workers. The Committee notes that the specific characteristics of domestic work, often involving triangular employment relationships, a high degree of dependence on the employer (especially 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 unions. The Committee requests the Government to indicate the manner in which domestic workers’ freedom of association and collective bargaining rights are ensured in practice.

Article 3(2)(c) and Article 4. Child labour. Minimum age. The Government indicates that the employment of children and young persons subject to mandatory full-time schooling requirements is prohibited under section 5(1), of the Young Persons (Protection of Employment) Act. As a consequence, the employment of children (persons under the age of 15 years) as domestic workers is prohibited. The Government adds that the Young Persons (Protection of Employment) Act and the Ordinance on the protection of children at work based on the Act authorize exceptions for occasional and light work that is suitable for children. The Committee requests 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 is 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.

Article 3(2)(d). Elimination of discrimination. The Government indicates that section 7 of the General Act on Equal Treatment prohibits discrimination in employment on the basis of ethnic origin, race, gender, age, disability, sexual orientation, religion or world view. The DGB indicates that, among full-time workers subject to social security contributions, men are paid an average of €2,050 per month, whereas women earn an average of €1,550 per month. This means that women’s wages are close to the minimum wage, while men are paid an average of €12 per hour, above the gross minimum wage of €8.50 per hour set as of 1 January 2015 for most workers in Germany. The Committee requests 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.

Article 5. Effective protection against all forms of abuse, harassment and violence. The Government indicates that the German Criminal and Civil Codes provide domestic workers with adequate protection against abuse, harassment and violence. Moreover, section 3 of the General Act on Equal Treatment prohibits discrimination, including harassment. 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 indicate the measures taken to give effect to this Article of the Convention. It further 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 protection available to them under the national legislative framework.

Article 6. Fair terms of employment, decent working and living conditions. The Government indicates that domestic workers are covered by the same provisions of labour and social security law as all other workers. For live-in domestic workers, decent living conditions, including respect for privacy, are specifically protected by sections 617 and 618(2) of the Civil Code, according to which employers have special obligations regarding the protection of workers living with them in a common household, such as providing for living and sleeping areas and providing food as well as working and rest times in a manner that is respectful of the workers’ health, morality and religion. In light of the DGB’s observations regarding the working and living conditions of live-in nurses and caregivers, the Committee requests the Government to indicate the measures taken to ensure that 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 applied in practice.

Article 7. Information on terms and conditions of employment. The Government refers to the Employment Conditions Documentation Act (ECDA) requiring employers to draw up, sign and provide workers with the essential contractual terms of their employment no later than one month after the agreed commencement of the employment relationship. It further states that the terms and conditions specified in Article 7 correspond to the fundamental working conditions of the ECDA. The DGB points out that there are often discrepancies between the German and foreign language versions of the same employment contract, particularly in regard to working time. As a result, the contract is not entirely in conformity with German labour law. The DGB also refers to a judgment issued by the German Federal Labour Court, holding that periods during which live-in workers are on call must be included in the calculation of working time and are to be remunerated within the meaning of Article 7(e) of the Convention. The Committee notes that Article 7 of the Convention requires Members to take measures to ensure that domestic workers are informed of the terms and conditions of their employment in regard to all its particulars. The Committee also notes that, whereas for German citizens placed to work abroad for periods greater than one month, the terms of repatriation (Article 7(j)) must be stipulated in writing and given to the worker before departure, no information is available on the required elements that must be set out in the employment contracts of foreign workers placed to work in Germany. 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 regard to the particulars listed in this Article of the Convention – in an appropriate, verifiable and easily understandable manner, particularly in respect of migrant domestic workers placed to work in Germany.

Article 8(1) and (3). Migrant domestic workers. The Government states that, based on the Social Code, Book XI, foreign domestic workers from outside the European Union (EU) may enter Germany only if their placement is based on a procedural arrangement between the Federal Employment Agency and the relevant labour administration body of the country of origin. Such workers may not be placed through private employment agencies and may be hired for up to three years; however, there are currently no bilateral arrangements in place governing these relationships. The Government provides no information on the enforceability of a foreign worker’s employment contract in Germany, where the contract has been concluded between the worker and a foreign temporary work agency. The DGB indicates that in the process of placement of foreign domestic workers to Germany, while they cooperate with foreign employment agencies, German placement agencies are the point of contact for the households receiving the domestic worker. German agencies do not get involved in the legal relationships based on which these workers are placed, since the household concludes the placement contract directly with the foreign agency. According to the DGB, working conditions under these arrangements do not comply with German labour law, particularly in regard to remuneration and working time. 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, which sets out the terms and conditions of employment in accordance with Article 7 of the Convention.

Article 8(4). Repatriation. The Government states that the conditions for entitlement to repatriation may be stipulated, as in every employment relationship, in an employment contract or collective agreement. The Committee notes that the mandatory repatriation rights in section 2(2) of the ECDA apply only to German citizens who are placed to work abroad. The Committee requests 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.

Articles 9(b) and 10. Measures ensuring appropriate rest and leave. The Government indicates that under the Working Hours Act, free choice of the place of residence is intrinsic to periods of rest, as opposed to working hours. Under the German law on annual leave, the worker’s entitlement to annual leave is fulfilled solely if the employer releases the worker from work-related duties so that the worker may rest where and as they see fit. Freedom from all such duties includes freedom to choose one’s own place of residence. The Committee requests the Government to indicate the measures taken to give effect to the provisions of this Article.

Article 9(c). Retention of travel and identity documents. The Government indicates that neither German nor foreign domestic workers have any legal obligation to surrender their passports or travel documents to their employers. The Committee observes that the requirement for States to take measures to ensure that domestic workers are entitled to keep in their possession their travel and identity documents goes beyond the mere absence of provisions requiring the surrender of such documents and requires States to take active measures to ensure that the seizure of such documents by the employer or the household is not permitted. The Committee requests the Government to indicate the measures taken or envisaged to ensure that domestic workers are entitled to keep their travel and identity documents in their possession, and the manner in which these measures are applied in practice.

Article 11. Minimum Wage. The Government refers to the Minimum Wage Act, in force since 1 January 2015, which applies to all workers and includes domestic workers as well as workers placed to work in Germany from another country. The DGB observes, however, that payment of the mandatory minimum wage is often circumvented in practice, where domestic workers who purport to be self-employed offer their services outside the scope of employment relationships in the form of services instead of under employment contracts, to avoid the payment of social security contributions. It points out that, often, components of the remuneration received by migrant domestic workers are paid in the form of a per diem in order to circumvent tax and social security contributions and domestic workers are required not to reveal to their customers – namely the households in which the domestic workers are performing services – the amount of remuneration they actually receive from the foreign placement agency. Such practices are especially prevalent in unsupervised placement activities in which German and foreign placement agencies are involved. The Committee requests the Government to indicate the measures taken to give effect to this Article, thereby ensuring that all male and female domestic workers enjoy minimum wage protections.

Article 12(2). Payment in kind. The Government indicates that section 107(1) of the Industrial Code authorizes both cash and non-cash payment of remuneration. In Germany, cashless payment is widely used on the basis of collective agreements, work agreements or individual contractual arrangements. To protect workers, section 107(2) of the Industrial Code provides that the value of agreed payments in kind may not exceed the attachable portion of a worker’s wages. The Committee notes that neither the Civil Code nor the Industrial Code set limits, as contemplated by Article 12(2) of the Convention, on the proportion of the remuneration that may be paid in kind. The Committee requests the Government to indicate whether national laws, regulations, collective agreements or arbitration awards impose limitations on payment in kind and, if so, to indicate the nature and extent of such limitations and their applicability to domestic work, including caregiving work.

Article 13. Occupational safety and health. The Government states that, under section 618(1) of the Civil Code, the employer has a duty of care to the domestic worker and is required to set up and maintain work areas, tools, and work schedules so that the worker’s life and health are protected to the extent that the nature of the services permits. Under section 618(2) of the Civil Code, if the domestic worker resides in the common household, the scope of the employer’s obligations is expanded to include the living and sleeping areas of the domestic worker. The Committee requests the Government to provide detailed information on the measures taken to ensure the occupational safety and health of all domestic workers, due regard being taken of the specific characteristics of domestic work, as well as on the impact of such measures.

Article 14(1). Social security protection. The Government states that domestic workers are protected through comparable provisions available to workers in general in regard to health, pension, accident, nursing and unemployment insurance (employment promotion). As all other women workers, female domestic workers are entitled to an allowance as part of their pregnancy and maternity benefits (section 24(c) to 24(i) of Book V of the Social Code) during the period provided by law. Parental allowance and parental leave are also provided, subject to the prerequisites specified in sections 1 and 15 of the Parental Allowance and Parental Leave Act. The Committee notes that domestic workers on marginally remunerated jobs (“mini jobs” paying up to €450 per month) are required to have pension insurance and pay a contribution to that end. They are, however, exempt from compulsory insurance. For coverage against illness, they must maintain their health insurance coverage held prior to their employment as domestic workers, usually under a statutory or private scheme. The Government indicates that the goal of such special arrangements for marginally remunerated workers in private households is the prevention of illegal employment, a goal which is aligned with the objectives of the Convention. Where a worker has more than one marginally remunerated job, both jobs will be added together. If the total earnings exceed the marginal remuneration threshold of €450, the worker will become subject to mandatory health and unemployment insurance, as well as pension insurance contributions as from the date on which the threshold is exceeded, in the same manner as other workers. Recalling the DGB’s comments concerning the prevalence of undeclared work in the domestic work sector, the Committee requests the Government to indicate the measures taken and their impact 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 benefits. The Government is also requested to 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 states that no specific implementing measures are necessary to give effect to this Article. The Committee notes the DGB’s observations on the widespread use of domestic workers who are purportedly self-employed, including 24-hour caregivers, and the lack of protection afforded to these workers, especially in a cross-border context. The Committee requests the Government to provide information on the conditions governing the operation of private employment agencies recruiting or placing domestic workers. It also 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 concerning the activities of such agencies in relation to domestic workers. The Committee further requests the Government to indicate the measures taken or envisaged to ensure that fees charged by private employment agencies are not deducted from the remuneration of domestic workers.

Article 15(1)(c) and (d). Cross-border meditation. The Committee notes the absence of any bilateral agreements between the Federal Employment Agency and the labour administration organizations in workers’ countries of origin that would provide protections for foreign domestic workers mediated for work in Germany. The Committee requests the Government to provide information on any measures taken or envisaged to conclude such agreements to prevent abuses and fraudulent practices in relation to domestic workers placed from abroad.

Articles 16 and 17. Judicial decisions Complaints mechanisms and access to justice. The Government states that access to labour courts is governed by the Labour Courts Act, according to which domestic workers may, under the same conditions as workers in general, take legal action before a labour court in order to ensure judicial enforcement of rights arising from an employment relationship. The DGB stresses that, despite these mechanisms, in reality, domestic workers – particularly foreign domestic workers – face difficulties in accessing the courts, often due to insufficient German language capabilities and lack of awareness of their labour rights. It adds that the specific characteristics of domestic work also make foreign domestic workers highly dependent upon their employers. The enforceability of contractual obligations is further hindered by the fact that specifics of the domestic work relationship between employers and foreign domestic workers are often agreed upon verbally and are not put in writing. The DGB indicates that, as a result, German labour courts rarely receive claims from domestic workers employed by German households. In regard to inspections, the Government states that, despite the far-reaching constitutional protection of the inviolability of the home, in order to avert immediate threats to public security and public order, an employer may be exceptionally obliged to permit entry into and inspection of the household as a workplace. The Committee requests the Government to indicate the measures taken to establish effective and accessible complaints mechanisms and means of ensuring compliance with national legislation for domestic workers, including measures for inspection, enforcement and penalties, having due regard to the special characteristics of domestic work. The Committee 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 and to provide the text of any such decisions (Part IV of the report form).