Demande directe (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

Convention (n° 189) sur les travailleuses et travailleurs domestiques, 2011 - Argentine (Ratification: 2014)

Autre commentaire sur C189

Demande directe

2019
2017

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The Committee notes the Government’s first report, the observations made by the General Confederation of Labour of the Argentine Republic (CGT-RA), and the Government’s reply to these observations.

Article 2 of the Convention. Scope of application. Exclusions. The Committee notes that section 3 of Act No. 26844 establishing special regulations concerning the employment of domestic workers excludes seven categories of workers from its scope of application. In particular, it notes that section 3(a) excludes from the scope of the Act persons recruited by legal entities for the performance of domestic services. The Committee requests the Government to specify the reasons for the abovementioned exclusions, to indicate the protection enjoyed by persons excluded from the protection afforded by Act No. 26844, and to provide information on any prior consultations on the abovementioned exclusions held with the most representative organizations of domestic workers and employers.

Article 3(2)(a) and (d). Protection of freedom of association. Elimination of discrimination in respect of employment and occupation. The Government indicates that Act No. 23551 guarantees, at national level and in general terms, freedom of association and workers’ right to organize and engage in union activity. The Committee notes that in 2015, for the first time in the country’s history, a collective bargaining process was conducted with regard to wages for domestic workers with the participation of associations of employers and domestic workers, and also representatives of the Government, and agreement was reached on the new occupational categories and an increase in minimum wages for the sector. In its observations, the CGT-RA states that it played an active part, together with the trade unions in the sector, in the consultations that preceded the new regulatory framework on domestic work, and also in the first collective bargaining process in the sector in 2015. The Committee notes the Government’s reference to sections 9–11 and 17 of the Employment Contracts Act (No. 20744), which affirm the principle of the most favourable provisions for workers, the application of the principle of social justice and the general principles of rights at work, equity, good faith and non-discrimination. In particular, the Committee notes that section 17 of Act No. 20744 prohibits any kind of discrimination between workers on the basis of sex, race, nationality, religion, politics, union membership or age. Moreover, it notes the Government’s indication that one of the principal objectives since the adoption of the Employment Act (No. 24013) has been to promote, in accordance with the terms of section 2(d) of the aforementioned Act, employment opportunities for groups facing major difficulties regarding social integration. The Committee requests the Government to indicate the manner in which section 2(d) of Act No. 24013 is applied in the domestic work sector and requests the Government to indicate what specific measures have been taken to promote employment opportunities in this sector. Observing that almost all jobs in the domestic sector are occupied by women, the Committee also refers to the comments it made on this subject in 2012 in the context of the Equal Remuneration Convention, 1951 (No. 100), and requests the Government to indicate the affirmative action measures taken in the domestic work sector to raise awareness of, evaluate, promote and apply the principle of equal remuneration for men and women for work of equal value.

Article 4. Minimum age. The Committee notes that Act No. 26844 prescribes a minimum age of 16 years for employment in domestic work. It also notes that section 11 of the Act establishes a maximum working time of six hours per day and 36 hours per week and that section 12 prohibits the recruitment of persons of school age who have not yet completed compulsory education, unless the employer provides such education. The Committee requests the Government to provide information on the measures taken or contemplated to give effect in practice to sections 9 and 12 of Act No. 26844.

Article 5. Abuse, harassment and violence. The Committee notes the adoption of Act No. 26485 establishing comprehensive protection for women, which defines workplace violence in section 6(c). The Committee also notes the November 2016 report of the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), which indicates that, despite progress made in the legislation, discriminatory stereotypes concerning the role of women and men in society, the machismo culture and gender-based violence against women – including sexual and domestic violence, femicide, sexual abuse at school and sexual harassment in the workplace – still persist in the country. The Committee requests the Government to provide information on the specific measures taken to ensure that domestic workers enjoy effective protection against any form of abuse, harassment or violence in the workplace and to indicate the specific impact of such legislation.

Article 6. Fair terms of employment and decent working and living conditions. The Committee notes that sections 15 and 16 of Act No. 26844 set forth the rights for “live-out” and “live-in” domestic workers. It also observes that section 47 of the Act establishes the obligation for live-in workers, in the event of termination of their employment contract, to vacate their place of residence within five days and to hand it over in perfect condition. The Committee observes that this provision makes no distinction between dismissal on serious grounds and dismissal for a different reason, which suggests that a live-in domestic worker who had committed a minor offence would be obliged to vacate his/her place of residence within five days. The Committee also notes the 2016 observations of the CEDAW highlighting the absence of monitoring mechanisms for ensuring that the working conditions of domestic workers are in conformity with the national legislation. The Committee requests the Government to indicate whether any kind of monitoring mechanism has been or is due to be established to ensure that the working conditions of domestic workers are in conformity with the national legislation. Furthermore, the Committee recalls that Paragraph 18 of the Domestic Workers Recommendation, 2011 (No. 201), provides that in the event of termination of employment for reasons other than serious misconduct, live-in domestic workers should be given a reasonable period of notice and time off during that period to enable them to seek new employment and accommodation. The Committee encourages the Government to take the abovementioned Recommendation into consideration when interpreting section 47 of Act No. 26844.

Article 7. Information on terms and conditions of employment. The Committee notes that section 6 of Act No. 26844 prescribes freedom of form with regard to employment contracts and that, consequently, the employer is not obliged to establish such a contract in writing. The Committee also notes that section 7 of Act No. 26844 stipulates that any contract covered by the Act shall be deemed concluded on a trial basis for the first 30 days in respect of live-in staff and for the first 15 days in respect of live-out staff, provided that the duration of the contract does not exceed three months. The Committee further notes that sections 16 and 17 of the Act provide that domestic workers must have an employment record card. However, it observes that the content of the employment record card has yet to be regulated, under the terms of Decree No. 467/2014. The Committee notes with interest that in 2015 the National Committee on Domestic Work (CNTCP), a tripartite body responsible for determining pay levels and minimum conditions for domestic workers, established for the first time new occupational categories and their respective pay levels, and that in December 2016 a new decision came into force introducing a 33 per cent increase in the minimum wage for domestic workers. The Committee requests the Government to provide information on the measures taken to ensure that domestic workers are duly informed of their terms and conditions of employment in an appropriate and easily understandable manner. It also requests the Government to provide information on the mechanisms established to ensure that any domestic worker who does not have a written contract of employment is entitled to the trial period provided for by section 7 of Act No. 26844. The Committee further requests the Government to send a copy of the employment record card and the regulations governing it.

Article 8(1), (2) and (4). Migrant domestic workers. Job offer or contract of employment prior to crossing national borders. Right to repatriation. The Committee notes that the Migration Act (No. 25871) regulates admission, entry, residence and exit from the country for foreign citizens, while section 3 makes access to employment dependent on the category of migrant worker. The Committee notes that, according to the statistics supplied by the Government, 21.2 per cent of domestic workers originate from neighbouring countries. The Committee observes that the “Agreement on residence for nationals of member countries of MERCOSUR (Common Market of the Southern Cone), Bolivia and Chile” provides for freedom of movement for employment purposes, creates entitlement in employment matters to treatment no less favourable than that received by nationals, and makes it possible to obtain legal residence by the mere fact of being a national of a member or associated country. The Committee also notes the observations of the CGT-RA indicating that Argentina has adopted an open migration policy with extensive recognition of the labour rights of migrant workers. However, the Committee observes that the Government does not provide any information on the conditions under which domestic workers would be entitled to repatriation on the expiry or termination of an employment contract. The Committee requests the Government to provide information on the manner in which it is ensured that migrant workers receive in writing a job offer or employment contract specifying their conditions of employment before they cross any national borders. The Committee also requests the Government to provide information on the conditions that must be observed by employers to ensure that domestic workers, particularly those not originating from a MERCOSUR member or associated country, have the right to repatriation on the expiry or termination of the employment contract for which they were recruited.

Article 9(a)–(c). Freedom to reach agreement with the employer on whether to reside in the household. Keeping possession of travel and identity documents. The Committee observes that the Government’s report does not contain any information on the measures it has taken to ensure, firstly, that domestic workers are free to reach agreement with the employer on whether to reside in the household and, secondly, that they are entitled to keep in their possession their travel and identity documents. The Committee requests the Government to provide information on the measures taken to ensure that domestic workers are free to reach agreement with the employer on whether to reside in the household where they work. The Committee also requests the Government to indicate the measures taken to ensure that domestic workers are entitled to keep in their possession their travel and identity documents.

Article 10(3). Periods during which domestic workers are not free to dispose of their time as they please. The Committee notes that the Government’s report does not contain any information on this provision. The Committee requests the Government to provide information on the manner in which it is ensured that periods during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household are regarded as hours of work.

Article 12(1) and (2). Methods of payment. Payment in kind. The Committee notes that section 19 of Act No. 26844 regulates the place, period and time for the payment of remuneration. It also notes that section 20 of the Act provides that a receipt must be given at the time of payment of remuneration and that the content thereof has been established by the Ministry of Labour, Employment and Social Security and the Federal Administration of Public Revenue (AFIP). The Committee also observes that Act No. 26844 does not provide for payments in kind for domestic workers. The Committee requests the Government to send a copy of the standard payment receipt established by the Ministry of Labour, Employment and Social Security and the AFIP and to indicate whether provision is made in the legislation, collective agreements or arbitration awards for a limited proportion of the remuneration of domestic workers to take the form of payments in kind and, if so, to specify the proportion concerned.

Article 13(1) and (2). Right to a safe and healthy working environment. The Committee notes that section 75 of the Employment Contracts Act (No. 20744) imposes a duty on employers to ensure the safety of their employees. Consequently, they must comply with the legislation regulating occupational safety and health, rest breaks and limits on hours of work. The Committee requests the Government to provide information on the manner in which this provision of the Convention is applied in practice.

Article 14(1). Social security. The Committee notes that section 72 of Act No. 26844 amends the Employment Contracts Act (No. 20744) and Act No. 24714 so that female domestic workers can be entitled to the pregnancy allowance and the universal child allowance and be covered by the special social security regulations. However, the Committee observes that, under the terms of section 72 of Act No. 26844, workers in the informal economy who are paid more than the minimum living wage are not entitled to the pregnancy allowance and the universal child allowance. The Committee also notes the observations of the CGT-RA concerning the high rate of informality in the sector and the low level of social security coverage enjoyed by domestic workers. The Committee further notes that section 39 of Act No. 26844 regulates maternity leave, that section 40 protects women domestic workers from dismissal related to pregnancy for the seven-month period preceding and following childbirth, and that this provision has been taken into account by the judicial authorities. The Committee requests the Government to provide information on the exclusion of female domestic workers in the informal economy from entitlement to the pregnancy allowance and the universal child allowance, and on the measures taken to ensure the protection of female domestic workers in the informal economy, taking account of the observations of the CGT-RA concerning the high rate of informality in this sector. The Committee also requests the Government to send up-to-date statistics on the rate of non-registered employment in the domestic work sector and the percentage of female domestic workers who have secured jobs with social security contributions and coverage since the entry into force of Act No. 26844.

Article 15. Private employment agencies. The Committee notes the indication in the Government’s report that the situations envisaged in Article 15 of the Convention are excluded by Act No. 26844 inasmuch as section 3 of the Act excludes from its scope “persons recruited by legal entities for the performance of the tasks referred to by [the Act]”. While noting that this provision would exclude a significant number of domestic workers, the Committee observes that the Government does not provide any information in its report on the reasons for this exclusion. The Committee requests the Government to supply statistics on the number of domestic workers, particularly migrant workers, recruited through employment agencies, and to indicate the reasons for the exclusion of persons recruited by private employment agencies laid down by section 3 of Act No. 26844 and the manner in which effect is given to Article 15(1) of the Convention.

Article 16. Access to the justice system. The Committee notes the establishment of an employment tribunal for domestic workers. It notes that this tribunal has competence for hearing cases and dealing with spontaneous agreements relating to disputes arising from employment relationships covered by Act No. 26844 that have occurred within the Autonomous City of Buenos Aires. The Committee requests the Government to provide information on the impact of sections 51–61 of Act No. 26844, on the number of complaints dealt with by the tribunal and on the measures taken by the Government to ensure effective access to the justice system for domestic workers. It also requests the Government to provide information on the types of remedies which can be accessed by domestic workers whose disputes have not occurred within the Autonomous City of Buenos Aires.

Article 17(2) and (3). Complaint mechanisms. Labour inspection. Access to household premises. The Committee observes that the Government’s report does not contain any information on measures taken relating to labour inspection, the application of standards and penalties, and access to household premises. The Committee notes the concluding observations of 2016 of the CEDAW inviting the Government to implement a system for the regular inspection of private households to ensure observance of the regulations governing the working conditions of domestic workers. The Committee recalls the comments it made on this subject in 2014 in the context of the Forced Labour Convention, 1930 (No. 29), in which it encouraged the Government to continue taking steps to reinforce the capacity for action of the labour inspectorate, particularly in the domestic work sector. The Committee requests the Government to provide information on the measures taken relating to labour inspection and the implementation of a monitoring mechanism to protect the rights of domestic workers.