Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 189) sur les travailleuses et travailleurs domestiques, 2011 - Chili (Ratification: 2015)

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The Committee welcomes the Government’s first report. The Committee notes the observations of the Single Central Organization of Workers of Chile (CUT-Chile), received on 3 November 2017 and 13 September 2018. The Committee requests the Government to provide its response to these observations.

Article 1(1)(c) of the Convention. Occasional or sporadic domestic workers. Section 146 of the Labour Code defines workers in private houses as “persons who are engaged continuously, on a full- or part-time basis, in the service of one or more persons or a family in cleaning and assistance work related to or inherent to the household”. Section 146(2) provides that: “In all respects, persons who perform the same or similar work to that indicated in the previous subsection in welfare institutions the purpose of which is to provide care for persons with special protection or assistance needs, thereby providing them with services related to the household, are workers subject to the specific provisions of this chapter.” The Committee notes that the inclusion of the wording “who are engaged continuously” in the definition means that workers who perform domestic work occasionally or sporadically are not considered to be domestic workers. In this respect, the Committee recalls that the definition of “domestic worker” set out in Article 1 of the Convention only excludes sporadic workers when the domestic work that they perform is not performed on an occupational basis. The Committee draws the Government’s attention to the preparatory work for the Convention, during which it was emphasized that this wording was included in the provision to ensure that day labourers and similar precarious workers remain included in the definition of domestic worker (Report IV(1), International Labour Conference, 100th Session, 2011, p. 5). The Committee suggests that the Government consider the possibility of adopting the necessary measures to ensure that occasional or sporadic workers who perform domestic work on an occupational basis are included in the definition of workers in private households, and are accordingly covered as provided for by the Convention.

Article 2. Exclusions. The Government refers in its report to Supreme Court case No. 3784-2003 and Valparaíso Appeal Court case No. 372-2002, in which both courts found that the provisions on workers in private households do not apply to nursing auxiliaries engaged under contract to care for and assist a patient, in view of the technical and managerial knowledge that they have acquired for their profession. In this regard, the Committee requests the Government to indicate the legal regime that covers nursing auxiliaries and whether they are guaranteed the same rights as other workers.

Article 3(2)(a) and (3). Freedom of association and the effective recognition of the right to collective bargaining. The Government indicates that the provisions of the Labour Code which govern the right to organize and to collective bargaining also apply to domestic workers. However, the Government considers that the adoption of specific measures is necessary to facilitate the trade union membership of such workers. In particular, the Government indicates that the legislation makes the exercise in practice of the right to collective bargaining very complex for workers in private households. The Government adds that it is necessary to establish appropriate mechanisms and procedures for workers in private households so that they have the real possibility of engaging in collective bargaining and for such bargaining to be binding on employers. In this regard, the Committee recalls that the specific characteristics of domestic work, which in many cases includes a high level of dependence on the employer (especially in the case of migrant domestic workers) and the frequent isolation of domestic workers in their places of work, are all factors which make it especially difficult for domestic workers to establish and join trade unions. The protection of freedom of association and the right to collective bargaining is therefore of particular importance in the sector. 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 rights and to guarantee in practice the right of domestic workers to freedom of association and collective bargaining, as well as information on the impact of these measures.

Article 3(2)(b). Forced labour. The Government indicates that the legislation in Chile prohibits any form of forced or compulsory labour. In this respect, the Committee observes that Title 8, Chapter V bis, of the Penal Code criminalizes offences related to the unlawful smuggling of migrants and the trafficking of persons. The Committee notes that, in its concluding observations, the Human Rights Committee, while noting the measures adopted by the member State to combat trafficking in persons (including internal trafficking), forced labour and domestic servitude, expressed concern at the persistence of such practices, particularly when the victims are women and girls (CCPR/C/CHL/CO/6, 13 August 2014, para. 20). The Committee requests the Government to provide information on the enforcement in practice in relation to domestic workers of the legislation that is in force to combat the smuggling and trafficking of persons, including statistical data on the number and nature of the violations reported, investigations, sentences and convictions.

Articles 3(2)(d) and 11. Discrimination based on sex. Minimum wage. The Government indicates that the wages of workers in private households cannot be lower than the monthly minimum income. The Committee observes that various provisions of the Labour Code refer to this prohibition, including section 42(a), which provides that the wage may not be lower than a minimum monthly income. With regard to discrimination based on sex, the Government refers to section 62 bis of the Labour Code, which provides that: “The employer shall comply with the principle of equal remuneration for men and women who perform the same work, with objective differences in remuneration based, among other reasons, on skills, qualifications, suitability, responsibility or productivity not being considered arbitrary.” The Committee refers to its previous comments on the application of the Equal Remuneration Convention, 1951 (No. 100), and trusts that the Government will take the necessary measures to amend the relevant legislation with a view to guaranteeing equal remuneration for men and women domestic workers for work of equal value. The Committee also requests the Government to provide information on the number and outcomes of the complaints made in the context of domestic work in relation to the requirement for the payment of a monthly wage that is not lower than the minimum monthly income.

Article 5. Protection against abuse, harassment and violence. The Government refers in its report to section 2, second subsection, of the Labour Code, which provides that: “Working relations shall always be based on treatment compatible with the dignity of the individual. Contrary conduct includes sexual harassment, in the sense of a person unduly, in any manner, imposing requirements of a sexual nature, without the consent of the person concerned and which threaten or prejudice her or his work situation or employment opportunities …”. The Committee nevertheless notes that the Government has not provided information on the specific measures adopted to ensure that domestic workers enjoy effective protection against all forms of abuse, harassment and violence. In this regard, the Committee recalls that Paragraph 7 of the Domestic Workers Recommendation, 2011 (No. 201), indicates that Members should consider establishing mechanisms to protect domestic workers from abuse, harassment and violence, such accessible complaint mechanisms for domestic workers to report any such cases. The Committee requests the Government to provide detailed information on the measures adopted to ensure that domestic workers enjoy effective protection against all forms of abuse, harassment and violence. The Committee also requests the Government to provide statistical data on the number of complaints of harassment, abuse and violence received by the various competent authorities in the context of domestic work, their outcome, the penalties imposed on those responsible and the compensation granted.

Articles 6 and 9(a). Domestic workers who reside in the household where they work. Decent living conditions that respect their privacy. The Committee notes that the Government has not provided information on the existence of provisions governing the quality of food, the nature of the accommodation and the right to privacy which have to be afforded to domestic workers who reside in the household in which they work. The Committee recalls that when workers live in the household in which they work, provisions respecting their living conditions are essential to promote decent work for them. It is important for the legislation to set out the obligations of employers in this regard. The Committee requests the Government to provide information on the measures adopted or envisaged to ensure that domestic workers: (a) are free to reach agreement with their potential employer on whether to reside in the household; (b) who reside in the household are not obliged to remain in the household or with household members during periods of daily and weekly rest or annual leave; and (c) are entitled to keep in their possession their travel and identity documents.

Articles 6 and 10. Domestic workers who reside in the household where they work. Equal treatment between domestic workers and workers generally in relation to hours of work and overtime compensation. The Government indicates that section 149(a) and (b) of the Labour Code establishes working hours for workers in private households who do not reside in the employer’s house of 45 hours a week which may be spread over a maximum of six days. Subsection (d) envisages the possibility of “… agreeing in writing to a maximum of 15 hours a week of overtime, which may not be accumulated in other weeks …”. Subsection (e) provides that the period between the beginning and the end of work may in no event exceed 12 continuous hours. The Committee notes that section 22 of the Labour Code establishes normal working hours of 45 hours a week for other categories of workers. Consequently, the same conditions are established for workers in private households who do not reside in the house and other categories of workers in relation to hours of work. With regard to workers in private households who reside in the household, the Government indicates that, in accordance with section 149, subsection 2, of the Labour Code, such workers are not subject to a time schedule, but that they must benefit from a period of rest of at least 12 hours a day, with a minimum uninterrupted period of nine hours. The remaining periods of rest may be taken during the day and shall be understood to include meal times. In this regard, the Committee observes that different conditions are established for domestic workers who reside in the household where they work, as normal working hours of 45 a week are not set in their case. Moreover, the Committee notes that, in accordance with section 149(d) of the Labour Code, workers in private households who do not reside in the household are covered by the provisions applicable to the other categories of workers set out in section 32 respecting the payment of overtime, but that there is no indication of the conditions under which overtime shall be paid for workers in private households who reside in the household. The Committee also notes that the CUT refers to section 150, second subsection (c), of the Labour Code, which provides that domestic workers who reside in the household of the employer “shall be entitled to rest on every day declared by law to be a public holiday. Nevertheless, the parties, prior to such days, may agree in writing that the day of rest will be taken on a different day which may not be fixed more than 90 days after the respective public holiday. This right is forfeited if it is not taken within that period and may not be compensated in cash, except in the event of the contract of employment terminating before the day of rest has been taken.” In this regard, the CUT asserts that the period of 90 days is excessively long for the recuperation of the day of rest, and that the provision does not set out the requirement to pay a premium for work on a statutory public holiday. It adds that the fact that the right to replace the public holiday by another day of rest may be forfeited could give rise to abuse by the employer. The Committee requests the Government to adopt the necessary measures to guarantee equality of treatment in relation to normal hours of work between domestic workers who do not reside in the household in which they work and those who reside in the household. The Committee also requests the Government to provide information on the measures taken to ensure that domestic workers who reside in the household in which they work are paid for overtime hours under the same conditions as other workers. The Committee further requests the Government to indicate the manner in which effect is given in practice to section 150, second subsection (c), of the Labour Code so as to ensure that domestic workers recuperate the public holidays on which they work and receive additional remuneration for them.

Article 6. Fair terms of employment. The Committee notes the indication by the CUT that the provisions of section 161 bis of the Labour Code are not applied to domestic workers. Section 161 bis provides that “total or partial invalidity shall not be a valid reason for the termination of the contract of employment. Any worker who is dismissed for such a reason shall be entitled to compensation”. The CUT asserts that, on the contrary, domestic workers are covered by section 152 of the Labour Code, which provides that “… any contagious disease, clinically determined, of one of the parties or persons who reside in the household shall give the other party the right to terminate the contract”. It observes that, in the event of illness, domestic workers are not ensured that they will be retained in their job and that they are therefore at risk of termination without compensation. The CUT adds that domestic workers are not covered by the general scheme of compensation in the event of termination established by section 163, subsection 3, of the Labour Code, under the terms of which, if the contract has been in force for a year or more and the employer terminates it in accordance with section 161 (requirements of the enterprise, establishment or service), the employer shall pay the worker compensation for the years of service as agreed individually or collectively by the parties, on condition that the amount is higher than that determined in the second subsection of the same section. Section 161 provides that, “in the absence of this condition, … the employer shall pay the worker compensation equivalent to 30 days of the latest monthly remuneration paid for each year of service and part of a year of over six months, performed continually for the employer. This compensation shall have an upper limit of 300 days of remuneration”. In the case of domestic workers, section 163 of the Labour Code is applicable, which provides that such workers “shall be entitled, whatever the reason for the termination of the contract, to compensation in any event which shall be financed by a contribution by the employer, equivalent to 4.11 per cent of the monthly taxable remuneration, which shall be governed, as appropriate, by the provisions of sections 165 and 166 of the Labour Code. The requirement to pay the contribution shall have a duration of 11 years for each worker, which period shall be counted from 1 January 1991, or from the date of the commencement of the employment relationship, if it is later. The amount of the compensation shall be determined by the contributions for the respective period, plus the interest obtained from them”. The CUT asserts that the rate of 4.11 per cent received by domestic workers in compensation is lower than the amount received in compensation by other workers under the terms of section 163 of the Labour Code. Finally, it indicates that domestic workers can be dismissed for reasons not related to them as individuals, in which case they receive much lower compensation than other workers. The Committee requests the Government to provide detailed information on the manner in which effect is given to this section of the Labour Code so as to ensure fair terms of employment for domestic workers in relation to other workers.

Article 7. Understandable information on terms and conditions of employment. Section 146 ter of the Labour Code provides that the contract must be registered by the employer within the first two weeks of the commencement of work by the worker. If this period is exceeded without the registration of the contract, the employer becomes liable to a fine and the provisions of the contract shall be legally assumed to be those declared by the worker. Moreover, in accordance with the section, the employer is required to register the employment contract with the local labour inspectorate or on the website established for that purpose within 15 days of its conclusion. Section 146 bis of the Labour Code also provides that “… the contract of workers in private households shall indicate the type of work to be performed and the specific household in which the work is to be performed, as well as, where appropriate, the requirement to assist persons who require special care or attention.” The employment contract shall also meet the requirements set out in section 10 of the Labour Code. In this regard, the Committee observes that the elements of the contract required by section 10 do not include the terms of repatriation, if applicable, nor terms and conditions relating to the termination of employment, including any period of notice by either the domestic worker or the employer, as required by Article 7 of the Convention. The Committee notes that on the website of the Labour Directorate models of contracts of employment are available for full- and part-time workers in private households who do not reside in the household, as well as for those who reside in the household. The model contracts contain the elements required by this Article of the Convention, with the exception of the terms of repatriation and the period of notice for either the domestic worker or the employer in the event of termination of employment. Finally, the Committee notes the organization of various days of training in 2017 for women domestic workers, including migrant women domestic workers, with a view to informing them of their labour rights in such areas as occupational safety and employment diseases, minimum remuneration, overtime, entitlement to leave, maternity protection and severance payments. The Committee requests the Government to indicate the measures adopted or envisaged to ensure in practice that domestic workers are informed of their terms and conditions of employment, including the terms of repatriation, if applicable, and the terms and conditions relating to the termination of employment, including any period of notice by either the domestic worker or the employer, in an appropriate, verifiable and easily understandable form, especially in the case of migrant domestic workers.

Article 8(1) and (4). Migrant domestic workers. The Government refers in its report to the various types of visas that exist in Chile for work by foreign nationals. The Government indicates that the contract concluded with a migrant worker who has not received administrative authorization is valid and effective to regulate the legal relationship existing between the employer and the worker, irrespective of the administrative liabilities which may arise for the employer out of the prohibition of the recruitment of a migrant worker without a work permit. The Committee also notes the indication in the “Guide on occupational safety and health for workers in private households”, prepared in 2016 by the Sub-Secretariat of Social Welfare, the Occupational Safety Institute and the Labour Directorate, in collaboration with the ILO, that the obligations of the employer include the requirement to comply with the provisions arising out of the foreign nationality of migrant workers. The Guide also reminds employers that, “even in the absence of compliance with the provisions respecting foreign nationality, migrant workers in private households also enjoy all labour rights”. In this regard, the Government refers to Instruction No. FIS-1.342, of December 2005, of the Superintendent Authority of Pension Fund Administrators (AFP), which indicates that in cases where the migrant worker has not obtained the authorization of the Department of Foreign Nationals, the employer is required to pay the worker the insurance contributions corresponding to the period of work. However, the Committee observes that the Government has not provided information on the requirement that migrant domestic workers who are recruited in one country to perform domestic work in another receive a written job offer, or contract of employment that is enforceable in the country in which the work is to be performed. Finally, the Committee also observes that the Government has not provided information on the entitlement of workers to repatriation. The Committee requests the Government to provide detailed information on the national legislative provisions which require migrant domestic workers who are recruited in one country to perform domestic work in another country to receive a written job offer, or a contract of employment that is enforceable in the country in which the work is to be performed, and which includes the terms and conditions set out in Article 7, prior to crossing national borders for the purpose of taking up the domestic work to which the offer or contract applies. The Committee also requests the Government to provide information on the entitlement to repatriation of migrant domestic workers on the expiry or termination of the employment contract for which they were recruited.

Article 8(2) and (3). Bilateral, regional or multilateral agreements. Cooperation for the application of the Convention. The Committee notes that the Government has not provided information in its report on the conclusion of bilateral, regional or multilateral agreements with other ILO member States envisaging freedom of movement for the purpose of employment for domestic work. The Committee requests the Government to provide information on this subject.

Article 10(3). Periods during which domestic workers are not free to dispose of their time as they please. The Committee notes that section 21 of the Labour Code provides that: “Periods during which domestic workers are at the disposal of the employer without working, for reasons that are not attributable to them, shall be regarded as hours of work.” The Committee observes that the Government does not indicate in its report whether this provision is applicable to both workers in private households who reside outside the household and those who reside in the household. The Committee requests the Government to indicate whether section 21 of the Labour Code applies to all domestic workers, including domestic workers who reside in the household in which they work, with a view to ensuring 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 in order to respond to possible calls shall be regarded as hours of work.

Article 15. Private employment agencies. The Government indicates that, under the terms of Order No. 3169/062, of 5 August 2011, of the Labour Directorate, it is not lawful to apply the legal regime of subcontracting set out in section 183-A of the Labour Code to the special contract of employment for workers in private households. The section provides that “Subcontracted work is work performed under a contract for work by a worker for an employer, identified as the contractor or subcontractor, when the worker, by virtue of a contractual agreement, undertakes to perform work or services on his or her account and risk and through workers dependent on him or her, for a third person or enterprise … known as the main enterprise, under which contracted services are provided or work performed …”. In the Order, the Labour Directorate also provides that the definition of the special contract for workers in private households set out in section 146 of the Labour Code implies that it is concluded between an employer, who must be a physical person, and a worker, also a physical person. Only in the case of an employer of a worker assimilated to one in a private household, as set out in section 146 of the Labour Code, may the latter be an association or institution provided that it is a welfare institution with the purpose of providing care for persons with special needs through work inherent to the household. The Labour Directorate adds that, as a consequence, there is a close relationship under a contract for work in a private household between the employer and the worker, justified by the situation, as the services are performed in the household of the former with a view to the provision of care to the employer and her or his family. Accordingly, there is a strong element of intuitu personae. As a result, the Labour Directorate indicates that subcontracting cannot give rise to the personal relationship referred to above, if the person requiring the services in the household has to contract them from an association, whether as a contractor or a subcontractor, instead of with an individual. In this regard, the Committee recalls that the International Labour Conference, at its 99th Session, indicated that work performed within an employment relationship also includes domestic workers recruited by a third party to provide services to a household (Provisional Record of the 99th Session of the International Labour Conference, No. 12, Geneva, 2010, para. 117). The Committee requests the Government to indicate whether in practice there are private employment agencies which place domestic workers and, if not, to indicate the measures adopted to ensure that no subcontracting of domestic workers occurs.

Article 16. Effective access to courts, tribunals or other dispute resolution mechanisms. The Government indicates that Chilean legislation guarantees all workers, including workers in private households, access to courts of law and to the Labour Directorate. In its report, the Government provides extracts from the rulings of various courts, mostly setting aside the dismissal of domestic workers in private households for unjustified reasons. In its observations, the CUT calls for the adoption of policies to improve the access of these workers to justice through the office of the labour defender or the creation of a sub-department responsible for this category of workers. The Committee requests the Government to provide information on the specific measures adopted with a view to guaranteeing the effective access of domestic workers to courts, tribunals or other dispute resolution mechanisms. The Committee also requests the Government to provide information on the number of complaints made by domestic workers to the various competent bodies, the penalties imposed on those responsible and the compensation granted.

Article 17(1). Complaint mechanisms. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to guarantee in practice compliance with this Article of the Convention, including legal assistance and information on accessible procedures and mechanisms in a form and a language that are understandable by migrant domestic workers.

Article 17(2) and (3). Labour inspection and penalties. Access to household premises. Section 146 ter of the Labour Code, provides that: At the request of a labour inspector in the exercise of her or his inspection functions in relation to the working conditions of workers in a private household, the employer may allow the inspector to enter the household, or may request that the labour inspector enter the premises at another date and time, with the required documentation. The Committee also observes from the reports of the inspection services provided by the Government that their action includes special inspection procedures involving visits to the household where the work is performed, the requirement of documentation and the questioning of the employer. However, the Government indicates that, although the powers of the labour inspectorate have been broadened in relation to the inspection of domestic work, it continues to be very complex to perform their functions. The Committee notes the allegation by the CUT that the means available to the labour inspection services to inspect compliance with the rules in the domestic work sector are not effective since, in light of the provisions of the Constitution, it is impossible to require inspection within a household in which domestic work is performed, which leaves the workers concerned without protection and ensures the impunity of employers who are not in compliance with the rules. The CUT considers that the Labour Directorate requires an increase in staff. The CUT adds that, in view of the high number of migrant domestic workers, it is necessary to design and develop a further training plan for labour inspection officials that is sensitive to gender and cultural diversity. The CUT also indicates that the labour inspection services and the Labour Directorate are not informed of the rights and duties of workers and employers in the domestic work sector. While noting the Government’s indications concerning the complexity of undertaking inspections in the domestic work sector, the Committee reminds it of the possibility of requesting ILO technical assistance in this regard. The Committee requests the Government to provide information on the number of inspectors in the sector, the number of violations detected and the penalties imposed.