Rights of Migrant Domestic Workers by Catherine Kenny

 

In recent years there have been significant developments in the expansion of international human rights standards for the protection of non-citizens. This blog post examines the progressive development of international standards relating to the rights of migrant domestic workers, a group that is marginalised not only because of their frequently precarious migration status, but also because of the often hidden and isolated nature of their work. In 2011 the ILO adopted a Convention and Recommendation on Decent Work for Domestic Workers. The rights of migrant domestic workers were the subject of the first General Comment adopted by the UN Committee on the Rights of Migrant Workers and their Families in 2010. Domestic work, and the particular challenges faced by migrant domestic workers, is also addressed by the UN CEDAW Committee in their 2009 General Recommendation on Women Migrant Workers. These developments and their implications for EU migration law and policy is the subject of a recently launched Irish Research Council Senior Fellowship project, led by Professor Siobhán Mullally, University College Cork. 

The numbers of domestic workers has increased significantly in recent years.  In Europe, the increased labour force participation of women, the ageing population in Europe and the consequential need for long-term care, the privatisation of social services and the decreased role of the State in the provision of care, are key factors in the increase in demand for domestic workers.   Statistics published by the International Labour Organisation (ILO), show that at least 52.6 million women and men over the age of 15 were engaged in domestic work as their main occupation.  Women comprise 83% of the total domestic workers worldwide. Many countries including some European States do not recognise domestic work as work and domestic workers do not enjoy the same protections under labour legislation as other workers.

In June 2011, governments, trade unions, and employers’ organizations that make up the ILO overwhelmingly voted to adopt the  Convention concerning Decent Work for Domestic Workers, supplemented by a Recommendation.   While only one Government voted against the adoption of the Convention (Swaziland), eight abstained including the UK and the Czech Republic.  The Czech Republic had during the drafting process supported the adoption of a (non-binding) Recommendation only. The UK representative explained that although the UK had legislation in place to protect domestic workers, it was not always appropriate to treat domestic workers identically to others which the Convention requires. The decision not to support the adoption of the Convention was widely criticised NGOs and other civil society groups in the UK..

The Convention and Recommendation were adopted after many years of campaigning and lobbying by workers organisations and other civil society organisations worldwide including the Irish Congress of Trade Unions (ICTU) and the Migrant Rights Centre of Ireland (MRCI).  The ICTU in its response to the draft Convention advocated in particular for legal standards to:  protect  domestic workers in diplomatic households; ensure that the right of domestic workers not to be required to undertake a HIV or pregnancy test and not to reveal their HIV or pregnancy status; include au pairs within the scope of the Convention and; require the adoption of  ‘dissuasive sanctions’ to protect domestic workers from having  passports and other documents retained by employers.

The MRCI highlighted the importance of ensuring that the Convention addressed gaps under existing international law and national legislation regarding the protection of domestic workers. It also advocated for attention to protecting access to social security benefits including maternity provisions.  Other issues raised included the need for limitations on payments in kind and equality of treatment with other workers in relation to occupational health and safety protections.

The Convention is significant for a number of reasons.  It defines domestic work and domestic workers, until the adoption of the Convention there was no internationally accepted definition of domestic work or domestic workers and some states did not recognise domestic work as work. However the Convention does not regard those who undertake domestic work occasionally or sporadically and not on an occupational basis as a domestic worker and article 2 permits states to exclude from its protection ‘limited categories of workers in respect of which special problems of a substantial nature arise.’

Article 3 of the Convention obliges Members to take measures to promote, protect and realise the rights of domestic workers to freedom of association and effective recognition of collective bargaining rights and other fundamental rights at work.  The right of domestic workers to form organisations or join organisations of their own choosing is also recognised.  Many domestic workers have been prohibited from joining trade unions. The Convention reaffirms minimum age standards set out in other ILO conventions and stipulates that states must take measures to ensure that domestic workers under 18 are not deprived of their rights to education and training (Article 4).  States are also required to take measures to ensure that receive effective protection against abuse, harassment and violence (Article 5) and that they will enjoy fair terms of employment and decent working conditions (Article 6).

Under the Convention domestic workers must  be informed of their terms and conditions of employment in an understandable manner, preferably through written contracts of employment, however, these shall only be provided where possible (Article 7).  States are also obliged to take measures to extend that minimum wage provisions (Article 11) and social security protection (Article 14) to domestic workers. Domestic workers will also receive equal treatment with other workers in relation to hours of work, overtime, rest periods and annual leave (Article 10). The Convention also provides that migrant domestic workers, who are recruited in one country for domestic work in another, will be provided with contract of employment setting out the terms and conditions of employment before the worker crosses national borders.  The contract must be legally enforceable in the country where the domestic work is to be carried out (Article 8). Article 9 provides that domestic workers are free to agree whether or not to reside in the home of their employer.

The rights of domestic workers are now on the international agenda. States can no longer ignore their responsibilities to domestic workers including migrant domestic workers. In 2005, Ireland adopted the Code of Practice Protecting Persons Employed in Other People’s Homes. Much remains to be done, however.  Unions have urged early ratification which they believe will build on the Code of Practice and extend to domestic workers their full working rights.  The MRCI while welcoming developments including the decision of the National Employment Rights Authority (NERA) to inspect private homes, continue to have concerns a number of areas including the lack of legal immigration channels for migrant domestic workers and situation of those working in diplomatic households and  are campaigning to ensure that national legislation reflects the provisions set out in the Convention.  The Government has not yet however given any indication of when ratification may take place only to confirm that it will be considered in the context of the State’s standard approach to the ratification of international treaties including whether any changes may need to be made to existing legislation